Assessors add no value to trials

By Nyakundi Nyamboga

It is June 11, 2005 at 8.30pm. Moses Gatiba Ihugo, a driver of a mini-bus just ordered for a beer at Dance Bar in the city’s Mathare North Estate.

Anthony Mwangi Mburu, also a matatu driver on the Mathare North route, joins him shortly. He requests to be assisted to tow his vehicle that had broken down at Pangani.

Ihugo agrees and leaves the bar for the car park.

He gets into the car and waits for Mburu. One Martin Kunyu approaches him and demands for money. David Nduati Njogu intercedes and asks Kunyu to leave Ihugo alone.

Mburu then emerges from the pub heading towards Ihugo’s mini-bus, but Njogu stops him.

Kunyu surfaces and demands for Sh100 from Mburu as "use of route charges". Njogu, too, demands for money from Mburu for plying the Mathare North route.

Turn down

A struggle ensues after Mburu turns down the demands. Kunyu throws a punch, but misses the target as Njogu pulls Mburu away. Njogu, with beer bottle in hand, hits Mburu on the neck with it.

"He did not fall when he was hit. He was walking. He came next to me and said ‘today I will die’. That is all he said. He got into the vehicle and lay on the seat behind the driver. There was blood all over him. I started the car and sped off."

That was part of Ihugo’s evidence during the trial of Njogu and Kunyu for murder.

Examination report

Mburu, 33, died on June 12, 2005 while undergoing treatment at Kenyatta National Hospital. According to the post-mortem examination report signed by Dr Moses Gachoki Njue, the cause of death was "ex-sangulation due to laceration over the neck".

On February 22, last year, the court found Njogu and Kunyu had a case to answer and put them on their defence.

At the first hearing of April 2, 2008, the duo objected to their further trial on grounds that their constitutional right to an expeditious hearing had been violated.

Njogu had been kept in custody for 102 days before being charged, some 88 days beyond the 14-day period referred to in the Constitution and Kunyu was held in custody for 35 days before being charged in court.

Through their lawyer, the duo contended their trial was a nullity because the State had not shown how the delay in arraigning them was justified.

No malice

The State had told the court the police had no malice in keeping them in custody and that evidence to support their offence would only be obtained with the arrest of both of them. Njogu, who was arrested on June 11, 2005, could only be charged after Kunyu was arrested. Kunyu was arrested on August 17, 2005, and the two were jointly charged on September 22, 2005.

The Judge held: "I did come to the conclusion the prosecution did discharge the task of explaining the delay."

In an unsworn statement, Njogu denied killing Mburu. He claimed he was talking with him when a rowdy patron came out of the bar and threw a bottle that hit Mburu on the head.

Kunyu on his part denied he was at Mathare North where the incident took place.

"I know nothing about it. I did not kill the deceased," he told the court at the defence hearing.

In a 28-page judgement by Justice Jacton Ojwang’, but read by Justice Jessie Lesiit, the court found Njogu and Kungu guilty of murder.

Brutal force

Said Judge Ojwang’: "From the evidence, the said mini-bus had its owner and driver, and Njogu was none of these. So Njogu applied brutal force to annex for himself the benefits of a mini-bus that was not his."

He added: "The courts must set their face against the scheme of lawlessness that occasioned the attack on Mburu by Njogu; and it is now held that he who engages in such an unlawful act of confiscation against another, and in the process kills the other, has the malice aforethought required for a charge of murder."

The judge held that "the two had a common purpose, which they were executing, by the common design of striking at the deceased; and they struck at him, though the fatal blow came from the first accused."

The sentence for convicts for murder is death.