Man convicted for robbing, gouging man’s eyes acquitted

Albert Mahagwa 43 years old during interview with Standard at Shikhambi estate in Kakamega on July 17, 2018. Mahagwa was attacked by thugs who pierced his eyes. [Benjamin Sakwa]

A man convicted for life for violently robbing a boda boda rider and gorging out his eyes has been freed.

High Court judge Jesse Njagi said the trial court failed to interrogate whether the complainant in the case identified the attacker, Kelvin Amayi Shitambasi, in the incident that took place at 9pm.

Shitambasi was convicted to face the hangman’s noose on August 17, 2017.

The charge indicated that he, jointly with others not before court, and while armed with offensive weapons, among them knives and machetes, robbed Albert Mahagwe a motorbike and money, all valued at Sh91,300.

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During the October 23, 2014 robbery, Shitambasi and his accomplices were said to have used actual violence that left the complainant with permanent blindness.

He would later submit that the prosecution shifted its burden of proof to him and that the evidence was fabricated, doubtful and flimsy.

The Director of Public Prosecutions (DPP) sought to retain him in prison for life, saying the complainant (Mahagwe) knew him well as “the violent attacker who pulled out his eyes”.

Water tight

But Justice Njagi maintained that Mahagwe’s evidence ought to have been water tight.

The same court also ordered the State to pay two inmates Sh500,000 each for forcibly detaining them for two years without trial.

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Justice Njagi likewise ordered the State to foot the costs of the petition filed by the two and to release them forthwith.

Patrick Okoth Otieno and Abdalla Oduor filed a petition in October 11 last year, saying they had been unlawfully held for two years on allegations of murder but had never pleaded to the charges during their detention.

The two were arrested in 2015 for a separate offence, they were convicted and sentenced to two years’ imprisonment, which they diligently served.

Upon completion of the sentences in 2017, authorities at Kakamega Main Prison detained them on allegations that there were murder charges levelled against them.

They contended that despite being produced in court several times, they never took plea thus they challenged their detention.

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“It is unlawful to detain suspects beyond 24 hours unless the detaining authority has a court order to do so. It is clear the petitioners have been denied the rights and are entitled to compensation and the declaratory orders they are seeking,” said Justice Njagi.

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High CourtDirector of Public ProsecutionsDPPKakamega Main Prison