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When State is ‘guilty’ but not officers who pulled the trigger

BUSIA
By | April 5th 2010

By Wahome Thuku

Individual police or military officers who shoot and kill innocent people may escape criminal justice but their employer, the Government, is liable for their careless actions.

The family of Nyeri businessman Charles Munyeki Kimiti knows this only too painfully. Munyeki’s son, John Martin Maina, was a matatu driver plying between Nyeri and Nyahururu.

On March 5, 2000 Maina left Nyeri town for Mweiga. But on the way, three robbers posing as passengers, struck.

Two robbers sandwiched Maina in the driver’s cabin as the other took over the vehicle.

As the matatu approached Kiganjo the conductor James Munyororo and a passenger jumped out and escaped. They reported the incident at Kiganjo Police Station. Munyororo told the police his colleague was in the vehicle.

Two officers, Joel Mwenda and James Nthomi spotted the vehicle being refuelled at a petrol station. Mwenda went to the passenger’s side and Nthomi went to the driver’s side and they ordered the occupants to surrender.

The gangster on the driving seat said he was the real driver and they had been carjacked. He was ordered to step out and he complied.

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But one of the other robbers pulled out a pistol and ordered Nthomi to move away.

The officers reacted swiftly, opened fire and killed two occupants instantly. The man driving the vehicle was arrested.

Before long the two officers realised their mistake. One of the killed men was Maina, the real driver. The robber’s gun was actually a toy pistol, and the third gangster had escaped.

The shooting led to protests in Nyeri town with matatu operators demanding justice.

The Attorney General ordered an inquest. Eight witnesses, including Munyororo, the officers, a petrol station attendant Joseph Thiong’o and a passenger Macharia Gichuku testified at the Nyeri Magistrate’s Court. Dr John Pius Okullo conducted the post-mortem.

There was no evidence produced at the inquest on the number of spent cartridges or bullet heads recovered at the scene, no evidence that the guns were taken for ballistic examination and no such expert was called as witness. The toy pistol was also never produced in court.

On April 3, 2001 the magistrate exonerated the two officers from any criminal liability. He ruled that faced by armed robbers they were not in a position to identify the real criminals.

There was no evidence of their intention to kill and they had no alternative but to open fire. There was no evidence they used excessive or unreasonable force. The magistrate ordered the file be closed.

Civil suit

But Maina’s father, Mr Munyeki, filed a civil suit against the two officers, the Police Commissioner and the Attorney General, citing recklessness and negligence on the part of the police. The case went before the then Nyeri High Court judge Vitalis Juma. Munyeki produced the inquest proceedings and report as evidence.

Although the officers, the Police Commissioner and the AG were served with notice of the hearing they did not respond.

Munyeki called an accountant Naftal Muturi Nduhiu to testify on the estimate income from the matatu business. The court assessed damages under the Fatal Accidents Act as Sh,824,000 another Sh100,000 as damages for loss of expectation of life and Sh33,240 as special damages.

But Justice Juma also concluded that the two officers were not negligent. The Police Commissioner and the AG could also not be held liable for the unfortunate death. On June 27, 2003 he dismissed the suit.

Munyeki filed this appeal in Nyeri. The respondents filed their defence denying any negligence. They maintained that police used reasonable force to counter threat by armed gangsters. The State Counsel argued that Munyeki did not call eyewitnesses to prove negligence.

Munyeki’s lawyer insisted that from the number of wounds it was clear Maina had not been shot by stray bullets. She argued that to prove negligence in the civil proceedings the standard of evidence required was lesser than that required in proving criminal liability.

The Court of Appeal was being called upon to determine whether the action by the two officers amounted to tortuous liability against them. The judges had to rely on the proceedings at the inquest

Though the inquest had exonerated the officers from criminal liability, it did not mean they were also free of civil (tortuous) liability. If found to have acted negligently, they could be liable in tort notwithstanding that they had been cleared of any criminal liability at the inquest.

Unreasonable force

The judges cited Section 21of the Criminal Procedure Code (CPC), which allows police to use all means necessary to arrest someone resisting arrest after being suspected of committing a crime. But Section 22 (3) of the CPC forbids use of excessive force in effecting the arrest.

Mwenda claimed the officers shot three times each. The post-mortem revealed at least six gunshot wounds on Maina hence it was probable that Nthomi may have also shot him.

The judges were of the opinion the two officers could clearly see the occupants since there was light at the petrol station. There was no fears the robbers would drive away as the "driver" had been ordered out. Police could have immobilised the vehicle by deflating the tyres before approaching.

"It seems to us the two officers just sprayed the matatu with bullets not caring that the two occupants are killed or not," the judges held.

Under the circumstances, the officers had no reasonable apprehension of the danger. There was no suggestion that their actions were outside the scope of that duty.

They used unreasonable force, which was unnecessary and unlawful. The liability had to go to the their employers, the Government, reason why the officers were also represented by a State counsel.

The judges, however, ruled that it was wrong to sue the two officers in personal capacity or even the Police Commissioner. It would have been enough to just sue the AG.

On March 5, this year, ten years since Maina’s killing, the Court of Appeal set aside the High Court judgement. The judges also struck out the suits against the two officers and the Police Commissioner. They entered a judgement for Munyeki against the AG alone.

They also ordered the AG to pay interests on the amounts from the date of the High Court judgement and the costs for the suit and the appeal.

— The writer is a court reporter

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