Convict escapes the gallows after eight-year nightmare

Kenya: Rolf Rainer Schmid was a renowned German hotelier, the proprietor of The Horseman in Karen, Rolf’s Place in Kitengela and the first African Heritage Restaurant. He was a sportsman, a sharp shooter who represented Kenya in the All African Games. He also served as a police reservist.

On January 20, 2006, a gang of seven men armed with guns and other weapons raided his home in Kitengela at around 6.30pm when the family was away. They seized the watchman and other workers and held them hostage as they waited for Rainer’s family to return home.

Rainer’s wife Ashaman Schmid and children returned home at around 9.10pm and soon after driving into the compound in two cars they were confronted by the gang. They were terrorised for seven hours before the gang left the home at 4am.

The gang robbed the family of cash, a television set, DVD players, sewing machine, laptops, cameras, mobile phones, watches, gold bracelets, clothes and the two cars, all valued at Sh7 million.

The robbery was reported at Rongai Police Station. Mr Rainer, then still a police reservist, requested the area CID boss to allow him liaise with the investigating officer in tracking down the gangsters.

Police planted informers in all places where the suspects frequented. On January 25, 2006, a suspect Tonny Wandera Juma was arrested in a night club in Nairobi wearing one of the bracelets stolen from the Rainers.

Police took him to Riruta where he and another suspect Martin Oduor Lango had just rented a house. There they recovered virtually all the household items that had been stolen from the Rainers. By that time, Oduor had travelled to Kisumu. Police traced him there and arrested him.

Apparently Wandera and Oduor had worked for the Rainer family for many years, both at Horseman Club and at their home.

During the heist, some of the robbers were hooded while others were not. The family members and the workers identified Wandera and Oduor at different points in time during the robbery.  Though the two were hooded they were identified by a house help, a farm worker and some members of the family by their voices. Wandera was identified by his peculiar walking style. Oduor was also identified by Mrs Rainer when at one point he uncovered his face.

At one point a family member opened a safe with toy guns used for paint ball game. One of the gangsters immediately announced that the guns were toys, an indication that he was familiar with them. The gunmen however took away two rifles and a target gun belonging to Rainer.

Broken tooth

Two other suspects were also arrested. A fifth suspect by the name John Kariuki Mwangi was arrested by Rainer on May 15, 2007 inside a bus heading to Kiserian in Kajiado. Rainer used a photograph to pick him out.

Witnesses claimed that they could identify him as he had not concealed his face throughout the robbery. Some described him as “a dark man with a big upper lip and a broken tooth”, others said he had “a scar on the face and had big lips” and another witness said he was “a short guy”.

The watchman identified him as the man who had ordered him to remove his uniform, which he (Kariuki) wore to pose as the guard. The house maid said Kariuki conversed with her for a long time during the incidence.

On May 27, 2007 an identification parade for Kariuki was organised and he was picked out by the witnesses. The parade was organised by Inspector Nelson Yegon.

The five suspects were charged before a Kibera magistrate court with robbery with violence and alternative charges of handling stolen property. They also faced charges of being in possession of illegal firearms.

The identification documents produced by Inspector Yegon, indicated that one of the suspects was called John Kariuki Mwangi. However, the name used in the charge sheet was Harrison Kariuki Mwangi. Yegon told the court that he organised a parade for identification of John Kariuki Mwangi. Oduor claimed he was in Kisumu during at the time of the robbery hence he could not have participated. Wandera said he was given the items by one Kibe to keep and had not taken part in the robbery. Kariuki said he knew nothing about the robbery.

After the trial, two suspects were acquitted. The other three, Oduor, Wandera and Kariuki were convicted and sentenced to death. They appealed in the High Court and lost.

They then moved to the Court of Appeal. At the Court of Appeal, Oduor and Wandera were represented by Betty Rashid while Kariuki was represented by lawyer Elvis Obok.

Oduor and Wandera maintained their position that they were not involved in the robbery. Kariuki argued that no identification parade was conducted in respect of him and that the purported identification parade was contrary to Force Standing Orders.

Three Court of Appeal judges Philip Waki, David Maraga and William Ouko rejected the argument that Rainer had taken active role in the investigations and that he had influenced his family on what to say. They accepted that the investigations were fully conducted by the police and Rainer only assisted them.

The court also accepted the argument that there was no point of holding an identification parade for Oduor and Wandera since the family had recognised the two as persons who worked for them and that during the seven-hour robbery, there was enough light in the house and they were able to observe them.

Further, the judges noted that the suspects were arrested with the stolen items soon after the incidence, proving their involvement in the robbery.

The court rejected the appeal filed by Oduor and Wandera and upheld their conviction and death sentences. Turning to Kariuki’s case, lawyer Obok argued that his identification parade was a nullity and of no probative value.

Mistaken identity

Though the Kariuki described by the family had special physical features, no parade was arranged in accordance with the law to pick him out. Obok further argued that the identification was unreliable and the arrest was a mistaken identity.

Last Friday, the judges agreed with him. “We have considered the submissions and we think there is considerable merit in them,” they ruled. “The appellant was a stranger to the witnesses who testified on identification. It was necessary, therefore, to connect him with the person seen by the witnesses at the scene of crime,” the judges said.

The judges noted that Rainer did not say he found anything incriminating in Kariuki when he arrested him. All he had was a photograph of him.

The judges concluded that the parade had not been organised in compliance to the Force Standing Orders and this was a fatal omission.

“The one where Kariuki was purportedly identified more than one year after event was for a different person,” the judges concluded giving him the benefit of doubt.

The court quashed Kariuki’s conviction and set aside his death sentence. After eight years in custody, the man was set free on Friday.