A move by a former senior police officer to clear his name over the alleged gold theft charge has flopped 36 years later.
Wilfred Mbiuki who was an inspector of police had already served two years in jail after being convicted in 1986 but he still wanted to get off the State's black books.
Mbiuki moved back to court, 36 years later seeking to set aside the judgment by the High Court.
He said in his court papers that he had no money to bankroll the appeal.
At the same time, Mbiuki argued that he was unaware of the case hearing date.
He filed his appeal in 1988 but left it hanging until last year when he asked the Court of Appeal to consider it.
However, Court of Appeal judges Asike Makhandia, Sankale Ole Kantai, and Dr Imana Laibuta ended his quest after finding that he had taken too long to seek redress.
According to them, his narrative that he was a man of straw could not add up.
“We also note that the applicant is a former police officer, and we do not believe that it could have taken him 33 years to find out the fate of his appeal whether or not he was a man of straw. As a former police officer, one would expect more diligence from him,” the judges said.
Mbiuki was charged alongside police constable Simon Kipsang Yator with an offence of stealing by persons employed in the public service.
According to the state, the duo stole 239 grams of gold valued at Sh34,000 from Daniel Kokwo on January 11, 1985.
Court records indicate that the two officers stopped Kokwo, a gold prospector outside a goldsmith shop in Nairobi. Kokwo told the court he had come to Nairobi looking for a better market for his gold.
The court also heard that the two officers threatened to arrest Kokwo and displayed guns that were underneath their jackets.
However, Mbiuki suggested that the gold could be sold and its proceeds split between them and the victim.
After passing through a few shops, they found a goldsmith who agreed to pay Sh150 per gram.
“Yator took the gold inside the shop leaving the complainants in the company of the applicant outside. Shortly thereafter, Yator came out and said that the shop owner had sent his son to the bank to get the money, and that he would pay for the gold later,” the court heard.
The two officers disappeared from a hotel they had taken the victim to wait for the money.
However, the officers were later arrested and charged but denied the charges against them.
Following a full trial, they were found guilty of the offence before they were convicted and sentenced to five years’ imprisonment each.
Aggrieved by their conviction, the two officers filed an appeal at the High court on October 15, 1985.
Upon hearing the appeal, the High Court was satisfied that they were properly convicted and dismissed both appeals.
However, it reduced the sentence to two years imprisonment for the two officers on April 30, 1986.
Dissatisfied by the High Court decision, the officers lodged a second appeal.
The court subsequently dismissed the appeal because of want of attendance on the day it was scheduled for hearing, on June 8, 1988.
Fast forward to last year, Mbiuki filed an application dated September 21 seeking to revive the appeal.
While arguing that he was a man of straw, Mbiuki said in all those years his file was lying in court, he never received any notice to attend court.
But the Director of Public Prosecution Noordin Haji urged the court to dismiss the case.
According to Haji, the officer was to blame for the delay. The court agreed with Haji.
“It is also our considered view that it would not foster the cause of justice for such a matter to be reinstated 33 years after its dismissal. The upshot is that the application is devoid of merit and is accordingly dismissed,” Court of Appeal ruled.