Death row convict walks thanks to prosecution's weak case

NAIROBI: Elijah Ng’ang’a, a motor mechanic, settled in Thika’s Mutomo village several years ago, and security in the area was topnotch, he had never had to look over his shoulder.

That however, changed on June 9, 2008, when he was brutally attacked and robbed of cash, a cellphone and a tool box containing spanners.

On that night, an exuberant Ng’ang’a was heading home accompanied by his friend Samuel Kiarie when a gang of heavily-armed men suddenly emerged from the roadside thickets, surrounded them then began to frisk them. For a moment, Ng’ang’a contemplated sprinting away but Kiarie, in an almost inaudible voice, advised against the idea saying it was foolhardy.

About 10 minutes later, the assailants had purloined all valuables the two had leaving them battered and seriously injured.

A day after the robbery, word reached Ng’ang’a that there was a person selling spanners at a nearby club. Anxious to see the tools, Ng’ang’a hurriedly went to the premise and presented himself as a prospective buyer to the seller, Martin Ndegwa. Oblivious that the new customer was actually the owner, Ndegwa - who would later be sentenced to death, gladly displayed the wares which Ng’ang’a scrutinised and positively identified as his own.

“When I asked whether there were more spanners, the defendant led me to a certain butchery where I saw my toolbox,” Ng’ang’a testified at the Chief Magistrate’s Court in Thika a few months after Ndegwa was arrested.

In his ruling, the trial judge said although Ng’ang’a and his friend did not identify their attackers, recovery of the stolen tools connected Ndegwa to the robbery.

On June 23, 2009, Ndegwa was found guilty of the offence of robbery with violence and sentenced to death. He immediately moved to the High Court in Nairobi saying the prosecution failed to also summon the club and butchery owners.

His arguments were however, dismissed after the High Court held that the prosecution had proved its case on the basis of the doctrine of recent possession. Ndegwa then sought redress at the Court of Appeal.

The prosecution strongly opposed the appeal insisting that Ndegwa must have been an accomplice in the robbery because besides him knowing where the tool box was, he was unable to explain how he took possession of the stolen property.

It therefore argued it was unnecessary to call the club or butchery owners or the person who informed the complainant of the sale of spanners to testify in the matter.

However, the appellate bench comprising justices John Mwera, Hannah Okwengu and Sankale ole Kantai noted that it was necessary for all relevant evidence to be availed to the court considering seriousness of charges faced by the appellant.

“Failure to call this crucial evidence weakened the prosecution’s case and created a benefit of doubt, which must be given to the appellant. Accordingly, we allow the appeal, set aside the High Court judgment and quash the appellant’s conviction and sentence,” they ruled.