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State faces uphill task in trying PEV suspects

By - | May 28th 2012

By Wahome Thuku

More than four years after the 2007/2008 post-election violence, the Director of Public Prosecutions (DPP) still insists he will prosecute over 5,000 post-election criminal cases.

The question on every legal mind is whether the police and the DPP have the capacity or even the will to handle the cases. This case helps to answer those and other related questions.

Four relatives, Stephen Kiprotich Leting, Emmanuel Kiptoo Lamai, Clement Kipkimei Lamai, and Julius Nyongio Rono were charged with the murder of seven people during the post-election violence.

The seven were among more than 35 people killed when Kenya Assemblies of God Church at Kiambaa in Uasin Gishu was set on fire on January 1, 2008.

They were Joseph Kimani Karugu, Mitati Rubia, George Muriu, James Mwirigi Mbugua, Peter Mwangi, Margaret Wanjiru Mburu and Simon Gatimba Mburu.

The victims were attacked by people who had smeared their faces with chalk and were armed with bows and arrows.

The prosecution called 31 witnesses in the case heard in Nakuru. The accused were later put on their defence.

The suspects testified on oath and called alibi witnesses who testified of their whereabouts on that day. Kipkemei opted to remain silent. The defence lawyers claimed the murder charges were politically motivated to cover police ineptitude and asked the court to dismiss the cases.

In his judgement, trial Judge David Maraga started by condemning the post-election violence in which more than 1,300 people were killed and over 300,000 displaced.

divine guidance

“As I condemn those events, I am fully alive to the onerous responsibility cast on my shoulders in this case. I have on one hand the families of the victims who are baying for the accused blood. I have on the other hand the accused, their relatives and friends who are asserting their innocence and are seeking their immediate acquittal. It’s a responsibility that my family and I have prayed over for divine guidance,” the judge said.

Rono’s sister in-law Susan Lamai had testified that police went to her house on April 9, 2008 and demanded to know the whereabouts of her husband Richard Lamai, whom they claimed was one of the suspects. Though they were told that Richard had died way back in 2003, police insisted he had participated in the burning of the church and even went on to search for him in the house.

The body of George Muiru was found in the mortuary and the two men who identified it for post-mortem were never called to testify.

“His murder has not been established leave alone the claim that he was murdered by any of the accused,” the judge pointed out.

Peter Mwangi was not murdered in the church. His son told the court that when their house was set on fire on the same day, he ran away leaving them behind.

 They found him in a banana plantation the following day with serious injuries and took him to hospital where he died on January 1, 2008.

common intention

The court was convinced that the other five were killed either in or near the church on January 1, 2008.

The court was also convinced that the gang, which raided the church, had a pre-conceived plan to do so.

But there was no evidence of a common intention having developed in the course of committing the action. “There is absolutely no evidence the raiders and/or any of the accused had met to arrange the execution of any unlawful deeds. In the circumstances, I have to dismiss the common intention theory as against all the accused in this case,” Maraga said.

That finding provoked him to vent his emotional outrage on the security agencies for shoddy job.

“This was obviously a planned attack,” the judge said recapping the graphics of the attack. “But there is not even a whiff of that plan in this case. There is no indication that the police ever investigated that aspect of the case yet in my view that should have been the core of their investigations.”

 casual manner

He went on, “We are told that up to 4,000 raiders attacked the church and killed about 30 people. We have only four suspects, where are the others?”

He took issue with claims that the Judiciary always acquitted criminals saying courts only relied on evidence before them.

“The case before me is not an ordinary murder case but one relating to the post-election violence. I have to point out to the shoddy police investigations so that blame is placed where it belongs. Call it a blame game or what you like but that is the truth of the matter,” Maraga said.

“One might wonder whether I am delivering a judgement or making a political speech,” Maraga commented on his remarks on insecurity. “I am not a politician. I am only a judge who is outraged by the casual manner in which we are handling serious issues like security and as a citizen, I am entitled to express my outrage.”

Some of the witnesses knew the accused for many years and claimed to have identified them at the scene. The crime was committed at mid-morning and the witnesses said they could not have been mistaken.

Some claimed that the accused also attacked them. The court acknowledged that there was no evidence of identification but recognition, which was even more satisfactory and reliable.

work properly

No one, however, implicated Kipkemei and the prosecution conceded that he was innocent. He was the first to be acquitted.

The fact that the attackers had their faces covered with white chalk meant even recognition was still questionable under the circumstances.

The prosecution did not attempt to challenge the alibis raised by the three accused.

“Without placing any evidence on record, the prosecution wants me to find that the accused had a common intention with the murderers and were part of that joint enterprise. That cannot be. Our security agencies have to do their work and do it properly,” he added.

Taking into account the alibis and the shortcomings in the identification evidence, the judge held that the prosecution had not proved their case and acquitted all the four suspects.



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