Flawed evidence lets officers accused of killings off the hook

By Wahome Thuku

Eric Akeyo Otieno and Michael Obunga were Administration Police officers attached to Laisamis DO’s office at Merille trading centre in Marsabit District.

On the midnight of February 25, 2005, area chief James Leupale overheard Akeyo commanding Obunga to follow him, saying he was going to kill someone. Obunga took his gun and followed Akeyo. The chief also took his gun and followed them.

A little while later, Ali Hassan, a hotel worker, saw the two officers arguing with Ahmed Ali, his boss’s son. Hassan said he heard Akeyo telling Obunga to shoot Ahmed. Then Akeyo himself fired his G3 rifle.

Ahmed ducked and the bullet hit Obunga killing him on the spot. Ahmed tried to run away, but Akeyo chased and shot him.

Suleiman, a cashier at the hotel, also saw Ahmed being shot. He went and grabbed Akeyo from behind and raised the alarm.

Firearms movement

Ahmed’s father Mohamed Ali, the hotel owner, responded and they overpowered and disarmed Akeyo.

The officer ran away. Regular police rescued him from an angry mob. They then arrested him.

Hassan kept Akeyo’s rifle in their house. Ahmed was taken to hospital where he died. Chief Leupale took Obunga’s gun.

They were given to Police Inspector Paul Wandaka who also recovered 13 live bullets and six spent cartridges at the scene.

Wandaka took the weapons to firearms examiner Lawrence Ndiwa at the Criminal Investigations Department headquarters in Nairobi for ballistic examination.

Akeyo was charged with murder and tried by Meru High Court judge Justice Isaac Lenaola in Meru.

Ndiwa told the court that he received from Wandaka a G3 rifle serial number 369369, FN rifle number 2332, six spent cartridges and 13 live bullets.

After examining them, he had concluded that the cartridges had been fired from G3 rifle 369369 and not any other gun. That was the number on the body of the gun itself.

Akeyo said he had been issued with G3 rifle serial number 359359 and not 369369. Firearms movement register from Laisamis DO’s office confirmed it.

Inspector Wandaka also confirmed that the G3 rifle issued to Akeyo was serial number 359359. It was the gun he had recovered from Hassan. He said number 369369 had been recorded in error, as it should have been 359359.

Justice Lenaola accepted the explanation as honest and reasonable. Akeyo was convicted and sentenced to death.

He appealed and the State conceded. Three Court of Appeal judges Samuel Bosire, Daniel Aganyanya and Joyce Aluoch ruled that Akeyo’s defence had raised reasonable doubt on the prosecution’s case and that should be to his benefit.

On November 7, 2008 the conviction was quashed and he was set free.

And so an almost identical event happened on January 16, 2008.

A police officer shot dead two demonstrators Ismail Chacha and William Onyango at Kondele Market in Kisumu. The incident was captured live on television cameras.

officer recognised

The officer in a helmet and jungle uniform was identified as Constable Edward Kirui of Kondele Police Station. H

e was disarmed and charged in Nairobi with the two murders.

Mr David Wafula, a demonstrator, said as Kirui approached after shooting he asked him: "Je, bwana unatuua?" (Sir, you want to kill us?). Kirui, whom he knew before, opened his helmet and he saw his face.

Kondele Police Station boss Ancent Kaloki said he recognised Kirui from the video clip by his unique walking style and when he briefly lifted the glass on his helmet.

The video clips were played several times in court, but no other witness said they could identify Kirui.

After evaluating evidence from 23 witnesses trial judge Fred Ochieng concluded it was murder. The officer was not in danger and he was not justified to shoot.

"The officer demonstrated his callous nature by kicking one of the young men who was on the ground. He demonstrated he did not deserve to belong to the disciplined force," Ochieng ruled.

But was it Kirui? When his bosses in Kisumu disarmed him, Kirui’s gun was handed over to Inspector Patrick Gikunda who forwarded it to Johnstone Mwongera, the firearm examiner at the CID Headquarters, together with 36 live ammunition and bullet head recovered from Onyango’s body.

rifle identified

Gikunda indicated the rifle was serial number 3008378.

Mwongera confirmed that the bullet head had been fired from AK47 rifle number 3008378 and not any other. But the rifle produced and identified by Chief Inspector Kaloki in court was 23008378. Kirui confirmed it was the gun rifle issued to him and not 3008378. Indeed the armoury register showed he had been issued with AK47 rifle number 23008378.

"Did Inspector Gikunda or any other police officer replace the gun which had been recovered from the accused with another one?" Justice Ochieng posed.

"If not, where did rifle serial number 3008378 come from? And if there was a change of guns, who did it, at what stage and for what reason?" he asked further.

With those questions Ochieng referred to the Court of Appeal judgement in the Akeyo case, which was binding on him.

"I have no alternative but to find, as I now hereby do, that the prosecution failed to prove that the fatal bullet was fired from the gun which had been issued to the accused," he said.

Kirui was given benefit of doubt and acquitted last Tuesday.