How miscarriage of justice brings little consolation to acquitted suspects

On June 4, 2010 Evans Mawere left his mobile phone business in Dandora for town in a matatu. That ride in the matatu would change his life forever.

Two days earlier, on the night of June 2, Alphonce Ngui Mativo, now deceased, was called on his mobile number by his friend Festus Musyoka Mathuva. His friend had travelled from upcountry on other business and on completion called Mativo to join him for a drink.

Festus and Mativo met at Mbuthia Bar at 8pm. The crowd at Mbuthia Bar was thin and they left. They went to Valley View Bar and Restaurant where they met Joseph Kimeu Ndemange, who they joined for more drinks. The three men were being served by Caroline Kanini.

Festus and Mativo left Valley View Bar and Restaurant at approximately 9.30pm. That was the last time that Mativo was seen alive. Two and-a-half hours later, his body was found by a police officer lying on a grass road 100 meters from Valley View Lodge and near his home. Mativo died from a stab in his heart. He was a Senior Private Officer with the Kenya Defence Forces.

When Mawere entered the matatu on June 4, 2010, he found a Nokia 3310 mobile phone on the backseat. He decided to keep it. Little did he know that the last time that particular mobile phone was in use was when it had the SIM card of a man whose lifeless body had been found two days earlier.

Mawere used the phone for a day then gave it to his pastor. In November 2010, he was arrested and charged with the murder of Alphone Ngui Mativo. The only evidence that tied him to the death was the Nokia 3310 mobile phone that he had found in the matatu.

During the trial of Mawere, Festus testified that he did not leave Valley View Bar and Restaurant with Mativo. He said that he went to the urinal, and when he came back he found that Mativo had gone. However, Jones and Caroline, the man who was drinking with the two friends on that day and the waitress who served all three men, both testified that Festus and Mativo left the bar together at 9.30pm.

The police did not investigate why the last three people who were with Mativo gave two different versions of the events that occurred two hours before he was found dead.

In order to tie the mobile phone to Mawere and the murder of Mativo, the police produced the records of the use of the SIM card of the deceased. These records were produced by a police officer attached to Safaricom. However, the records did not include any of the calls or messages made, sent or received by Mativo between May 15, 2010 and July 15, 2010. For unknown reasons these records disappeared and no explanation was given.

The mobile phone was never found with Mawere. The police recovered the phone from James Alukaya Matenge. James had received the mobile phone from a man known as Edwin Ingosi. Both James and Edwin were arrested but were released after recording their statements. They were never produced as witnesses during the trial. The mobile phone was also not produced as evidence by the investigating officer because of the absence of James and Edwin.

The investigating officer admitted in court that he had recorded a statement from a witness who stated that Mativo was murdered by one Borana man and two other men from Kiambu. The police did not pursue this lead.

Seven years after Mawere was arrested, Justice Wakiaga acquitted him of the charge of murder noting that the police had not conducted a proper investigation into the matter. Freedom brought little consolation as he had already lost his business, home, wife and child.