ODPP Goof: Man wrongfully detained, prosecuted for murder by state awarded Sh5.5 million

A decision by the Director of Public Prosecutions to wrongly detain and prosecute a man will cost the taxpayer more than Sh5 million.

This is after a High Court in Nairobi ordered the government to pay him the money as compensation for wrongful detention and malicious prosecution.

Justice Asenath Ongeri ruled that the Director of Public Prosecutions, the Attorney General, Corporal Cosmas Katindi, and the Inspector General of Police violated Evans Oketch Mawere’s rights for detaining him without a court order.

Mawere was awarded Sh5 million for malicious prosecution and Sh500, 000 for false imprisonment for the period he was detained without a court order.

“I accordingly enter judgment in favour of the plaintiff against the defendants jointly and severally in the sum of Sh5,500,000 plus costs of this suit and interest from the date of this judgment until payment in full,” ordered the court.

Mawere instituted a suit against the four in December 2018, seeking general damages for imprisonment and malicious prosecution for a crime he did not commit.

He said he was charged on December 5, 2010, with the offence of murder, and the proceedings terminated on December 13, 2017, and was acquitted. He said he spent seven years in custody.

The High Court established that the case against him was poorly investigated, adding that the DPP was under pressure to charge him.

The case was that Mawere was charged in court because the investigators were under pressure to charge someone, since the deceased was an army officer.

Through his lawyer, Ms Kethie Kilonzo, Mawere said he spent the seven years behind bars as he could not afford bond.

Katindi, in his statement, said he was the investigating officer in the case, together with Inspector Benjamin Wasike and PC Burgei.

He said during the investigations and subsequent prosecutions, they obtained mobile data of the deceased from Safaricom.

Katindi said they established that three other people had used the mobile phone. They were arrested and subsequently released after recording statements but later switched off their lines and could not be traced.

But the court while determining the case, said there was an abuse of the legal process since there was pressure from unknown sources to charge the plaintiff with the offence of murder.

“The charge of murder is a serious one, and I find that the police did not have sufficient evidence to arrest the plaintiff and arraign him in court,” ruled the judge.

The judge said Mawere proved that he was arrested and charged without reasonable and probable cause.

“There was evidence that the real culprits were known but the investigators did a shoddy job and recklessly charged the plaintiff hurriedly,” noted the judge.

The judge said it was Mawere’s choice that he spent seven years in custody as he did not ask for bond.

The court, however, noted that the DPP, the AG, the investigating officer, and the Inspector General of Police admitted liability for the 14 days Mawere was held in custody without a court.

The judge said the DPP, the AG, and the police did not have any reason to arrest Mawere and charge him with a serious offence of murder, knowing very well that the only evidence they had against him was that he had contact with the deceased's phone two days after the deceased had died.

“The Defendants were under pressure to charge the plaintiff, and this is contrary to the constitutional mandate of the defendant as enshrined in Article 157 of the Constitution,” ruled the judge.