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ELECTION 2022

How police lose cases before they are heard

COUNTIES
By Allan Mungai | May 11th 2018 | 3 min read
Controversial Pastor James Nganga (l) and his co accused Simon Kuria in the dock at a Limuru court where he was acquitted from charges of causing death by dangerous driving. [George Njunge/Standard]

The acquittal of televangelist James Ng’ang’a for dangerous driving has raised questions on the quality of police investigations.

Ng'ang'a and three others were cleared of charges arising from a 2015 accident involving his vehicle in which a woman died.

Ng'ang'a had been charged alongside police inspectors Christopher Nzioka and Patrick Baya, and a Simon Kuria.

While the televangelist's case came to the attention of the public because of his high profile, across the country there are numerous cases that could have been easy wins for the prosecution but flopped due to loopholes left by police in their investigation.

Court documents

In February last year, Peter Kariuki, who had been convicted and sentenced to 20 years for defiling a 16-year-old girl, was released after a scrutiny of court documents revealed that police failed to ascertain the victim’s age before drawing up a charge sheet.

Justice Jairus Ngaah of the Nyeri High Court found that the particulars of the offence and evidence adduced at the trial were inconsistent with the offence the accused was charged with.

The court ruled that the police had merely presumed that the complainant was aged 16 at the time of the offence.

This oversight rendered the facts that the prosecution had relied on erroneous.

Making errors on the charge sheet is just one of many ways that police officers have crippled the prosecution of cases.    

Others include investigating officers failing to show up in court, or appearing while unprepared, therefore providing evidence that does not strengthen the case, or worse, providing contradicting testimonies.

Among the reasons Justice Teresia Matheka cited on November 8, 2017, when she overturned the death sentences imposed on Peter Waihiga Kabiru, Paul Mutemi Kanyi and Simon Babu Mwangi for robbery with violence was that one of the police officers who handled the case provided 'conflicting and confusing' information when he photographed the vehicles suspected to have been involved in the robbery.

“It is not clear whether it was done on January 3, 2010 or January 13, 2010,” the court said.

Interestingly, another police officer had testified that car was taken to Murang’a on January 7, 2010.

The contradiction was one of the grounds that the three men raised in their appeal.

But the most common police evidence loophole is citing an incorrect section of the law and Penal Code, which makes a charge sheet defective.

According to lawyer Wahome Gikonyo, who has handled a number of criminal cases, the wording on the charge sheet can cost the State a court case.

"If it is a defilement case, for example, the charge sheet has to have words such as 'committing', 'unlawfully, and 'intentionally'. Lack of such words render the charge fatally and incurably defective," he said.

Police transfers

In other instances, transfers in the police service have come in the way of cases.

In one such case, two suspects who are on trial for murder argued that they had been falsely charged and insisted they were arrested only because they were present at the scene.

A police inspector was hard-pressed to explain the evidence she had to incriminate the two men.

Under pressure, the officer admitted she was not at the crime scene, but had taken over the case from her colleague who had been transferred.

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