AG wants ruling on murder of Kisumu rioters declared mistrial

Attorney-General Amos Wako wants the acquittal of Corporal Edward Kirui over the murder of two demonstrators in Kisumu in 2008 declared a mistrial.

Mr Wako says the judge misdirected himself to reach that conclusion.

Wako said evidence pointed sufficiently to the guilt of the accused and he could not understand Justice Fred Ochieng’s logic in setting the murder suspect free. He said in Parliament yesterday families of the victims are entitled to compensation if they applied and subject to evaluation of certain factors.

Serious crimes

But MPs demanded disciplinary action against Justice Ochieng, compensation for the families of the deceased and declaration that Kenya’s judges and courts are incompetent to handle serious crimes like murder in the wake of the 2007/208 post-election violence.

Meanwhile, Wako also announced that he would appeal the May constitutional court ruling outlawing Kadhi courts next week.

Responding to a petition by Kisumu Town West MP Olago-Aluoch, Wako said there are no grounds to appeal Kirui’s release because the Court of Appeal cannot reverse an acquittal made by a High Court.

He said remedy lies in the amendment of the Constitution to give the Court of Appeal such power.

Wako claimed he does not believe Justice Ochieng is guilty of misconduct or was motivated by extraneous considerations to set Kirui free.

But he declared the judge was in error to acquit the accused as Kisumu Town East MP Shakeel Shabir Ahmed accused him of trivialising the two murders.

Mr Shakeel said police killed 87 demonstrators in Kisumu in cold blood during post-election crisis.

Imenti Central MP Gitobu Imanyara said the AG should order ex gratia compensation to the families without subjecting them to a fresh trial or legal process.

Nyakach MP Pollyns Ochieng said the judge ought to be punished. The AG said he has directed the Director of Public Prosecutions to explore an avenue of obtaining declaratory orders questioning the logic behind Justice Ochieng’s judgement and/or a mistrial. The AG said the matter was well investigated and wondered why it did not lead to Kirui’s conviction.

Wako suggested that Ochieng relied on an irrelevant precedent and possible misreading of forensic evidence or typographical error to reach his conclusion.

Erroneous entry

He said part of the problem, possibly, arose from the fact that Ochieng took over the trial after another judge handled it then relied on an erroneous entry about the firearm exhibits.

The AG, however, declined to order disciplinary action against Ochieng.

"When a judge misdirects himself that does not amount to misconduct, he said.

—Reports by David Ochami and Peter Opiyo