DPP's office denies family justice
By Edwin Cheserek
| May 9th 2012
By Edwin Cheserek
He allegedly refused to buy beer for some Administration Police officers and for this ‘offence’, the retired army officer had to die.
His family has been pursuing justice ever since, but it now appears justice has become too elusive for them.Witnesses say Julius Yator Kibiwott had left a nearby joint at Kapyego trading centre when he was confronted by two Administration Police officers on patrol.
The incident occurred in June last year in Marakwet East District.
When he was about to be arrested by the officers, he resisted arrest because the officers failed to disclose the offence he had committed. In the process, Yator injured one of the officers in the scuffle.
At this point, the 48-year-old former military officer was beaten senseless and injured by the officers before he was forcefully arrested.
The officers allegedly enlisted the help of two members of the public to carry him to Kapyego AP camp where a clinical officer at Kapyego Health Centre treated him.
“I could not handle his case because his condition had worsened. I instead referred him to Kapsowar Mission Hospital,” recalls Willy Kandie, a clinical officer who was called to attend to Yator.The following day, Yator’s relatives arrived at the AP camp where they hired a private car that took him to Kapsowar Mission Hospital for specialised treatment. He, however, was pronounced dead on arrival.
The body was moved to Moi Teaching and Referral Hospital where a post-mortem examination was conducted by a Dr Macharia to ascertain the cause of death.The results indicated that the deceased was hit with a blunt object and died of excessive bleeding.
“I formed the opinion that the cause of death was raised intracranial pressure due to intracranial haemorrhage due to blunt force trauma to the head,” he wrote.
When the APs learned that Yator had died, they reported to Kapsowar Police Station that Yator had been arrested while in possession of two ammunitions and that members of the public had assaulted him when he resisted arrest.Police officers from Kapsowar Police Station visited the scene and interviewed witnesses.
In the course of the investigation, it emerged that the deceased was a well-known businessman dealing in forestry produce and living within Kapyego area.It was recommended that the two officers stand trial for the offence of murder.
An inquest file No 3/2011 was forwarded to the state counsel recommending that the officers be prosecuted for the offence of murder.
Yator’s arrest, according to the inquest, was as a result of undisclosed reasons whose genesis started when he allegedly declined to buy the officers beer.According to the evidence gathered during the inquest, the offices waylaid Yator and arrested him without any apparent reason.
The first witness, Gladys Jepkosgei, confessed that one of the officers checked at the bar and demanded that Yator buys them beer.
“The deceased moved out to receive a phone call and was followed by the officers but later returned and continued drinking,” said Jepkosgei.“He left the bar for a nearby lodging where he had booked a room to spend the night,” added Jepkosgei.
“I saw Yator being stopped by two officers who were flashing a spotlight on him,” said Jepkemoi Bowen who managed to identify the officers.She said one of them grabbed the deceased by the collar but he resisted and a commotion ensued.
She explained: “They started beating and hitting the deceased with a rifle butt inflicting injuries on him.”
Mr Elijah Ouma, who was in charge of the investigation, found enough evidence to prosecute the officers.He stated: “After going through the evidence produced in connection with the incident, I find there is enough fact to sustain the crime of murder.”
Mr Ouma noted that no offence was disclosed which prompted the two officers to arrest the deceased.“The two officers used excessive force which resulted in serious injuries to the deceased and eventually death,” he said.“The deceased was not armed and used his teeth as self defence to resist arrest because he committed no offence,” disclosed Ouma.
He dismissed allegations that the deceased was found in possession of two live ammunitions saying that the officers fixed Yator because they had a grudge with him.
“It is clear that the deceased was hit with a rifle...The doctor’s findings corroborate the evidence of one of the witnesses,” added Ouma.“I consider the two APs be charged for the offence of murder contrary to section 203 as read with section 204 of the penal code,” recommended Ouma.
And in July last year, the officers were arraigned before the High Court sitting in Eldoret and charged with murder.
On December 14, last year, Justice J R Karanja ruled that the case should be withdrawn and the accused discharged.
This followed an application by a State Counsel, a Mr Oluoch, to have the case withdrawn. Subsequently, the court set free the two officers accused of killing Yator attracting protest from the aggrieved family members and human rights lobbyists.
Centre for Human Rights and Democracy (CHRD) expressed concern over the withdrawal of the case, saying there was enough evidence to charge the two.
“Withdrawing a case of such capital offence with such speed and at such a stage is fundamentally a miscarriage of justice as there are quite triable issues that need to be interrogated in a full hearing,” it argued.
Yator’s family, through their lawyer John Chebii, have complained that they have been denied justice yet the available evidence can sustain a full trial of the suspects on murder charges. In their protest letter to the Director of Public Prosecution (DPP) dated December 14, the lawyer says: “Our client has instructed us to take up the matter and we demand the accused be charged, evidence given in court and the matter rest with the court.” In April this year, the CHRD questioned why the State withdrew the case.
Chebii said the family is not satisfied that justice was done and believes that Yator was executed by the identified officers who must never be left to go scot-free.They raised concern over the judge’s move to allow the application that saw the suspects discharged. Four months later, the DPP is yet to respond to both letters raising concern that justice has been denied.
The family is asking the DPP to order for a full trial.
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