Prosecution errors win Lamu murder convict freedom
By Dennis Mbae
| December 16th 2015
KENYA: A cry of distress tore through Bora Imani village, Lamu County, on the night of February 3, 2011 waking villagers from their deep slumber.
Rehema Guyo was one such villager and her close proximity to the source of cries enabled her to hear the exact words uttered by the assault victim.
“Njoo mnisaidie nafa (come help me I am dying). It was about 1:45am and Rehema immediately made a call to village elder Jackson Ngumbao.
When the neighbours eventually found him, Karisa Gamoyo - the victim, lay on the ground writhing in pain with his intestines protruding from his body.
There was no trace of blood at the scene and it appeared that Gamoyo may have been assaulted elsewhere and then taken to the place where Rehema, Ngumbao and the other villagers found him.
When asked what happened, Gamoyo allegedly said Chengo Kalama - the owner of the homestead where he was found, had shot him with an arrow.
With a makeshift stretcher made out of sacks, the villagers carried Gamoyo to Mokowe Police Station and reported the incident before proceeding to Mokowe Health Center.
Thereafter, Gamoyo was taken to Lamu District Hospital and then to Coast General Hospital where he died two days later while undergoing treatment.
Kalama was arrested and charged before the Malindi High Court where he denied committing the offense and elected to keep quiet when placed on his defense.
Justice Christine Meoli, while relying on Gamoyo’s alleged statement that Kalama shot him, found the latter guilty of murder but surprisingly sentenced him to 15 years in prison instead of death.
Kalama lodged an appeal at the Court of Appeal in Malindi and faulted the High Court for convicting him on the basis of unreliable circumstantial evidence.
“The prosecution did not tender in evidence the post mortem report and medical treatment records where the deceased was treated. Therefore, the ingredients of the offence of murder were not proved,” Kalama argued before justices Milton Makhandia, William Ouko, and Kathurima M’inoti.
The appellate bench expressed dissatisfaction at how Kalama was supposedly identified by the deceased especially because there was no testimony regarding visibility on the material night.
The judges thus noted that Gamoyo could easily have been attacked by another person or persons and then dragged to Kalama’s homestead.
Eventually, they quashed Kalama’s 15-year jail term and set him free after concluding that Gamoyo’s death and its cause were not established beyond reasonable doubt.
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