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How field marshal’s trial was set up to fix him

By Daniel Wesangula | March 19th 2016

New evidence documenting the trial of Dedan Waciuri Kimathi indicates the field marshal’s quest for justice in a colonial court was set up to fail and subsequent appeals against a death sentence had little chance of success.

The trial and appeal were mired in contradictions as witnesses gave conflicting accounts of how and where Kimathi was arrested. His own testimony and witnesses did little to sway the court, despite a passionate argument by himself and his lawyer.

For instance, testimony from prosecution witnesses who alleged to have been present at the time of his shooting and arrest vary in great detail.

In their argument, the prosecution alleged that on the morning of Sunday October 21, 1956, two policemen on patrol around a reserve saw someone moving at the edge of the ditch. One policeman, Ndirangu son of Mau, shouted at the man to stop. The man did not stop and instead started running into the ditch that surrounded the reserves to limit movement into and out of the cordoned villages.

Ndirangu said the running man had something on his shoulder which appeared to be sugarcane. Since the man in question did not stop, Ndirangu fired. The running man tried to climb out of the ditch and into the reserve but Ndirangu fired again. And again for a third time. The man fell over and disappeared into surrounding bush.

While this was going on, the second policeman, identified as Njogi, said he fired into the air twice so as not to injure his colleague. As a result of the commotion, four other policemen joined them in search of the man who had disappeared into the bush.But during cross examination, Kimathi’s lawyers exposed disconnect in the different narratives provided by the witnesses.

An excerpt of the cross examination of one of the key witnesses, Ndirangu son of Mau, by Kimathi’s lawyer Ralph Miller.

The policeman could not write. So his statement was written for him by the prosecution. This came up during the trial.

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Ndirangu: I am a tribal policeman. I made a statement to the police on October 21, 1956 and put my thumbprint on it and it was translated to me and was true.

Miller: But you say “about half an hour later as we were reaching the position we intended to stop at I saw something moving along a forest ditch.”

Ndirangu: Yes, and that is true.

Miller: He (Kimathi) was not then climbing out of the ditch when you first saw him?

Ndirangu:: Yes he was.

Miller: You said in your statement; “I saw something moving along the forest ditch to my right. IT looked to me as if it was a man, because I could see that it was carrying something on its shoulder which looked like sugarcane....then I shouted in English who goes there, and as I shouted this, I saw the man who was now climbing out of the ditch..”

Ndirangu:: I saw him climb out of the ditch going towards the forest.

The issue of Kimathi’s position, whether he was in the ditch, out of the ditch or simply in the forest dominated the cross examination of the other prosecution witnesses. None of them gave the same account of events.

Defective memory

From the documents, the only constant among them was the fact that they were all paid a certain amount of the bounty of Sh10,000 on Kimathi’s head.

Also of concern was the vegetation around the scene of the shooting. In his affidavit, Ndirangu says he could maintain eye vision on Kimathi after the first shot and could clearly see his movements from around 70 yards (64 metres) away.

The other state witness, Njogi son of Ngatia contradicted Ngatia.

“When I fired into the air and Ndirangu shot him, he disappeared completely. There are some bushes there,” Njogi said in court.

All this, the narration of Kimathi’s shooting, happened before daybreak. At one point of the trial, Njogi admitted to his defective memory.

Defence: Is your memory defective?

Njogi: Yes, I think so. I am not quite certain. I am liable to forget. Yes I think I have forgotten. I did not see some of the things... but Ndirangu told me he did... in fact, I was mistaken in saying that the man was shot while in the trench. In fact, I did not see him get shot.”

Defence: If Ndirangu told you the man was shot, would it not be prudent for you to search for blood stains as you looked for the injured man?

Njogi: We did not think of that, we thought the man might run away.

This was the general tone of the trial. Details provided by the prosecution witnesses could not prove beyond reasonable doubt that Kimathi was out to cause harm in society and did little to dismantle the defence argument that he (Kimathi) was actually on his way to surrender following an amnesty to all Mau Mau fighters.

Also, the state witnesses described the scene of shooting as having a dry river bed and an adjacent stream. An inspection crew commissioned by the court found that there was neither a dry river bed nor stream at the scene.

On its part though, the defence almost obsessively dwelt on the proceedings of a single event, the shooting incident, and failed to exploit the individual weaknesses that each of the witnesses brought to the case.

Although, Kimathi’s appeal was largely built around his intention to surrender, little or no line of questioning towards this end was followed by his lawyer.

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