Professional Documents
Culture Documents
R V Fredrick Ole Leliman 4 Others
R V Fredrick Ole Leliman 4 Others
R V Fredrick Ole Leliman 4 Others
REPUBLIC OF KENYA
REPUBLIC ……………….………………….….….…….PROSECUTOR
VERSUS
JUDGMENT
THE INFORMATION
1. The five (5) accused persons have been charged with three
counts of MURDER of three (3) persons namely Willy Kimani
Kinuthia, an advocate & human rights crusader working with
Count 1
Count 2
Count 3
her honour had left off the case with the consent of all the
parties. In this case this court has made a record five
substantive rulings, one of which was on a novel area of law
which was cited with approval by the Court of Appeal (Joseph
Lentrix Waswa Vs. Republic) sitting in Kisumu, as it
considered a similar application, and out of which an appeal
was made to the Supreme Court.
THE ACCUSED
4. Getting back to the judgment, let me set out who are charged
in this matter. The 1st to 4th accused persons were all
Administration Police officers, the 1st and 4th accused stationed
at Mlolongo Police Station, and 2nd and 3rd accused stationed
at Syokimau Administration Police Camp. The 1st accused was
the leader of the Spiv Unit, where he worked with the 4th
accused, PW26, one PC Waweru and one PC Mwaniki. The 2nd
and 3rd accused persons performed general duties at
Syokimau Police post. On the week the incident took place,
the 2nd accused was the one in-charge of Duty at the Post. IP
Cheboi, not called as a witness was the officer in charge of the
Syokimau Police Post.
5. The 5th accused was a businessman in Waithaka dealing in
clothes, and a civilian who doubled up as a police informer,
and one who worked closely with the OCS Mlolongo, Chief
Inspector Lelei, in the latter’s previous postings before joining
Mlolongo Police Station in the same capacity.
4 HCCR. CASE NO. 57 OF 2016
WITNESSES CALLED
and the drive to Athi River where the bodies were thrown over
the bridge into River Athi.
18. All five accused persons were placed on their defence, and
each of them gave their defences with some calling witnesses.
19. The 1st accused was DW13 in the defence case. In his sworn
defence he denied any involvement in the planning or
execution of the murder of the deceased, or in the disposal of
their bodies. He testified that between midnight on 22nd June
to 10am on 23rd June 2016, he was at his house at Valley View
Estate. He gave details of how he spent his day on 23rd June,
trying to help his sister-in-law, DW15, get a transfer, by
approaching his senior DW14, to escort him and his sister-in-
law to their boss at Uhuru Camp, to assist. The 1st accused
and his sister-in-law DW15 hooked up at few minutes to 11am
and together went to meet with DW14 at Uhuru Camp, where
they arrived at 11:27am. He testified that they remained there
together until 1:11pm when he returned to Mlolongo Police
Station. He then picked his wife, DW16 for lunch and between
13:54 to 15:54 hours they were at home at Valley View Estate.
He then left for Mlolongo Police Station and after meeting SSP
Matu, DW10, returned home at 2000hours.
20. The testimonies of DW14 and DW15 confirmed the visit to
Uhuru Camp on the morning of 23rd June 2016, and the time
they parted, as per the defence evidence of the 1st accused.
DW16 the wife of the 1st accused confirmed spending the
10 HCCR. CASE NO. 57 OF 2016
That the OCS alerted him and the other police officers when
the youth started the card’s game, to go and apprehend them
at around 3pm. He testified that while there on that
assignment, the 2nd deceased defied his orders to drop his
knife, which he had lifted up as he advanced towards CPL Jane
Ngige intending to attack her. That it was at that time that he
shot him once on the right wrist joint. He testified that he later
took him to hospital for treatment. He said that the 2nd
deceased was charged for that incident. That at a later date
he was charged with traffic offences after he, the 1st accused,
and other officers found him riding a motor cycle with three
pillion riders, without a helmet, reflector jacket among other
offences, for which he was also charged.
23. DW12 was CIP Robert Sugut OCS Makindu Police Station. He
was called by the 1st accused and he produced the OBs for
Makindu Police Station and Kiboko Police Post covering 23rd
and 24th June 2016, as well as the Cell Registers for Makindu
Police Station and Kiboko Police Post. He stated that Kiboko
was a Police Post under Makindu Police Station. The OB. No.
17 of 24th June 2016 confirms that at 12:07 hours one prisoner
was collected by Senior Sgt Fredrick Leliman and CPL Richard
Nyakundi of Mlolongo Police Station.
24. The 2nd accused gave an unsworn defence. He was DW1. He
accounted for his movements on the 23rd June 2016. He said
that he left the Post for Athi River for personal work from 8am.
That he proceeded to meet with the 3rd accused at City
Cabanas from around 11am to 12:30pm, where they had gone
12 HCCR. CASE NO. 57 OF 2016
32. The 5th accused gave a sworn defence. He was DW17. In his
defence the 5th accused stated that he was a police informer
and also a businessman. He said that he knew PW26, PC
Kamau because the OCS Lelei gave Kamau his number. He
said that Lelei also gave him Kamau’s phone number and told
him that if he ever needed the OCS but he was not available,
he could call Kamau. This was happening on the second week
of June 2016.
33. He stated that on 23rd June 2016, he proceeded to Mlolongo
intending to sell jeans to Kamau. He reached there at 8:30
a.m. at the upper stage. That as he did not reach Kamau on
phone as his phone was off, he proceeded to the station where
he found him with Waingo, also a police officer and one
Kamenju a police officer.
34. The 5th accused stated that Kamau gave him an assignment
to track a ‘Kamwizi’, a thief who was going to Mavoko Law
Courts that morning. He was supposed to keep tracks of him
and to keep reporting back to Kamau. The 5th accused stated
that he kept track of the three deceased as required of him,
and that at around 11am or 12pm he saw the three deceased
persons leaving court hurriedly. He reported this to Kamau.
He said that he was picked up by one Brown at Mavoko Court.
That later that day while in a vehicle NZE at Mlolongo, near
the weighbridge, he saw the vehicle the deceased persons had
driven off in from Mavoko Law Court. He testified that he noted
that the deceased were not in the vehicle, rather it was one
Kamenju in the car.
16 HCCR. CASE NO. 57 OF 2016
35. The 5th accused stated that he was told to take that vehicle to
Limuru, and that he was also given a radiophone. That he took
the vehicle all the way to Limuru. He later received a call
requesting him to go to Mlolongo to receive a reward for the
work he had done.
36. He told court that Kamau told him to proceed to Kwa Muthee’s
bar, past Mulley’s Supermarket. He proceeded there and found
Kamau with Waingo, Kamenju and Brown. It was 6:30 pm or
so. That at the bar, Kamau gave him a car key and told me to
get money in an envelope inside the car described to him,
which he did. He got the money. That when he went back to
Muthee’s, he found Kamau and company had ordered meat.
37. That in half an hour or forty-five minutes a police man came
panting. That he told Kamau that those people he ‘dropped
there had called’. That upon getting the information from one
Mwaniki, Kamau, Waingo, Mwaniki and Brown left quickly.
That they did not get back. That at past 9 pm he was directed
to proceed to a certain area where he walked and found a
vehicle with hazard lights on as he had been informed. He
found Kamau with Kamenju, Brown, Waweru and Mwanikil.
They were standing but not together.
38. He testified that Kamau asked him to sit inside the car, which
he did. That he did not know where the thieves were, but that
he was told they would go to Thika. That there were two
vehicles and all of them were seven. He was told he would be
one of the drivers, and that he would travel with Kamenju and
Brown because they were the cigarette smokers. The other car
17 HCCR. CASE NO. 57 OF 2016
45. The accused persons are charged with three counts of Murder
contrary to section 203 of the Penal Code. Section 203
defines the offence of murder as:
”Any person who of malice aforethought
causes death of another person by an unlawful
act or omission is guilty of murder.”
47. There are five accused persons charged with this offence. The
prosecution has the burden to establish that the accused
persons acted in one common intention or joint concert to
commit this offence.
48. Malice aforethought is an integral ingredient for the offence of
Murder. It is a technical term associated with the state of mind
of the accused charged with the offence of murder, as at the
time the act or omission which caused death was executed.
The prosecution must prove that the act(s) or omission(s) of
the accused that caused death were actuated by malice. The
circumstances that constitute malice aforethought are set out
under Section 206 of the Penal Code as follows:
51. The onus and evidential burden lies with the prosecution to
prove their case against the accused persons beyond any
reasonable doubt. Upon considering the evidence adduced by
both parties in this case and the submissions by counsel, I find
that the issues which are for determination are:
i) Whether this court is corum non judice, or put
simply, whether this court lacks jurisdiction to
conclude the trial on account of appointment
to a higher bench before the trial was
finalized;
52. I will deal with the issues arising in this case in no specific
order, alongside the other matters presenting themselves for
consideration arising from the submissions of counsel and the
evidence. The prosecution has not adduced any eyewitness
account of the murders, as none of their witnesses saw the
offences being committed, except for the account in the
retracted confession of the 5th accused.
55. Counsel urged that when I was appointed a judge of the Court
of Appeal on 3rd June, 2021, I started exercising the powers
inherent in that role as envisioned by the Constitution. He
urged further that I was previously a judge of the High Court
during the tenure of which I commenced hearing of the instant
case. He questioned whether I could concurrently exercise the
powers of both offices, and urged that it appeared readily
apparent that appointment to the office of the judge of Court
of Appeal automatically repealed the previous appointment as
a judge of the High Court by necessary implication. He cited R
(Morgan Grenfell& Co Ltd) v Special Commissioner of
Income Tax & Another [2003] IAC 563 on what
constitutes necessary implication to wit:
57. And answering his own question of which was the appropriate
time to raise the issue of jurisdiction, Mr. Michuki urged that
it was a fundamental issue in the proceedings and could be
raised at any point in the proceedings. Counsel cited The
Owners of Motor Vessel ‘Globe Your’ [1998] eKLR, for
the proposition that the issue of jurisdiction cannot be belated
but can be raised at submissions stage of the proceedings,
including on appeal.
58. On the issue of jurisdiction raised by Mr. Michuki for the 5th
accused, it was the submissions of Mr. Mutuku learned counsel
for the State that raising the issue in the final submissions was
in bad faith and an attempt to delay further the conclusion of
this matter and avoid culpability. Counsel urged that when the
28 HCCR. CASE NO. 57 OF 2016
61. Mr. Mutuku urged that this was not a new occurrence in
Kenya’s history in the administration of criminal justice. He
drew court’s attention to the 6th Announcement of the Judges
and Magistrates Vetting Board dated 15th January 2013 by
Sharad Rao Chairperson of the Board touching on
Determination Number five of the Board. [A post 2010
occurrence]. Counsel gave example of two judges appointed
to higher benches from the High Court in 2011 and 2012, who
sought for and obtained leave from the Chief Justice to be off
the Cause list of the higher courts in order to finalize their
pending matters in the High Court.
62. Regarding the submissions that the administrative actions of
the Hon. Chief Justice conferred jurisdiction, and that the
same was ultra vires the powers of her office, Mr. Mutuku
learned counsel submitted that the position was contrary.
Citing Section 16 (a), (c) and (e) of the High Court
(Organization and Administration) Act No. 27 of 2015,
counsel urged that the Chief Justice exercises discretion under
the Judicial Service Act No. 1 of 2011, which includes
exercise of general directions and control over the judiciary
under Section 5 (2) (c) of the Act. Counsel stated that the
directions to this court to conclude this matter was within the
law and in compliance with Article 159 (2) (a), (b), (c) and
(d) of the Constitution.
63. Learned counsel Mr. Mutuku urged that this matter is of huge
public interest, at an advanced stage with 46 witnesses having
testified and 117 exhibits produced. That all five accused
30 HCCR. CASE NO. 57 OF 2016
67. The issue whether this court has jurisdiction to complete the
trial and write judgment calls for a holistic consideration of the
values and principles of the Constitution, as well as the
circumstances of the case and the parties, and public interest
if any. I do not ascribe to Mr. Michuki’s submission that it
appeared readily apparent that appointment to the office of
the judge of Court of Appeal automatically repealed the
previous appointment as a judge of the High Court by
necessary implication. To repeal means to revoke or rescind.
The definition of a repeal is the act of taking something back;
to reverse; abrogate; annul; invalidate; nullify; void; recant;
retract; take back; terminate, etcetera. In order to repeal an
appointment that had been gazetted, the same process would
have to be undertaken. It would have to be gazetted. It cannot
34 HCCR. CASE NO. 57 OF 2016
counsel for the 5th accused cannot apply to this case. This is
because the sole issue for determination in the cited case was
whether in the absence of an express provision of law allowing
a second appeal to the Court of Appeal from the High Court,
the Court of Appeal could rightfully, properly and lawfully hear
and determine the matter brought pursuant to Section 75(4)
of the Election’s Act. The Court of Appeal held it had no
jurisdiction because the Elections Act did not provide for a
second appeal on a point of law.
71. Likewise, In the Matter of an Application by the Owners
of Motor Vessel “Globe Your” (1998) eKLR cited by the
counsel for the 5th accused does not apply. The issue in that
case was whether the court had jurisdiction to entertain a
judicial review application filed outside the time expressly
provided for by the court.
72. I agree with Mr. Mutuku that the directions given by the Hon.
Chief Justice to the Judges appointed from the High Court to
the Court of Appeal, to complete their respective advanced
partly heard matters, was an administrative action that was
anchored in the law. Section 16 (a), (c) and (e) of the High
Court (Organization and Administration) Act No. 27 of
2015 provides:
“16. Role of the Chief Justice as the head of
Judiciary
The Chief Justice may issue practice directions and
written guidelines to judges and judicial
officers to—
37 HCCR. CASE NO. 57 OF 2016
(b) ….
74. I do not want to appear to read the Hon. Chief Justice’s mind
when she gave the directions in issue. However, the lack of
any express guiding provision in the Constitution on the issue
must have been an integral reason for the action and direction
given by her Ladyship the Hon. Chief Justice. That the
Constitution was silent, thus the Head of the Judiciary
exercised statutory powers in the two Statutes quoted above
to guide that process. There can be no vacuum. There can be
no occasion for a vacuum that the courts of law will fold hands
and say there is nothing they can do because the law is silent.
This is why courts intervention in judicial review under the
doctrine of ex debito justitiae has the force of law.
75. I believe that the issue of hearing and disposal of cases, which
is the co-function of courts in this country, is a matter affecting
the dignity, the accessibility, the effectiveness, the expeditious
disposal of matters and the functioning of the courts. It also
39 HCCR. CASE NO. 57 OF 2016
there were 117 exhibits for the prosecution and 34 exhibits for
the defence.
82. Not to mention that if there is an interruption in the
conclusion of the matter and the case given to another judge
to handle, there are several implications. First, the costs factor
to the public coffers will be enormous, considering but not
limited to State Officers who will be engaged in handling the
matter. Second, the other important question to consider is
what will be the effect or impact of handing over this file to
another judge in the Criminal Division. If they will have to
proceed to write judgment, how long will it take the judge to
understand the numerous volumes of proceedings before
penning down a judgment? Third, what guarantee will there
be that witnesses will be found supposing the matter were
ordered tried afresh, seven years down the line? Fourth, what
trauma will the families and colleagues of the deceased
continue to suffer due to prolonged waiting for the final
determination of the case? Fifth, what of the accused persons
having to have the case start all over again, even the most
strong and patient of them all will have trauma by such a
move.
83. I believe that it will be against public interest and public policy;
and it will not serve efficacious disposal of this case to adjourn
it and hand it over for continuation by another judge. Such an
action does not settle well with the need to uphold the
purpose, values and principles of the Constitution, especially
those touching on the expeditious delivery of justice without
44 HCCR. CASE NO. 57 OF 2016
88. PW19 stated that he conducted the post mortem on the body
of one Willy Kimani on 4th July, 2016. He stated that he
received the CT scan of the subject. The scan indicated that
the subject had a fracture on the skull on the left side
extending to the front side of skull into the left eye socket
bone. He also had a fracture on the right upper jaw and on the
left cheek bone. He also had multiple skull and facial bone
fractures.
89. On post mortem, PW19 stated that externally, the subject
body had features of decomposition including skin slipping off.
He stated that the body was distorted, swollen and was
darkening on the lower limbs, blood was oozing from mouth
and nose. He further stated that it had a laceration on right
side of the head which was 2cm long and abrasions on the
forehead. The left side of the head was deformed and there
was a contusion bruise on the back left of the head. He noted
a deformation on the right side frontal parietal region of the
head which he explained as being a bash inside the head
indicative of a fracture underlying it. He indicated that there
was a contusion on the back of the head which was about
120cm from the middle of the head, an abrasion on the right
side of head, an abrasion above the left eye and an abrasion
near the ear. He finally stated that there was an extensive
bruise on the anterior wall.
90. PW19 stated that internally, the subject’s body had signs of
bleeding on the muscles of the chest which were more on the
right side. He stated that the Lungs, Heart, Pancreas, Liver,
47 HCCR. CASE NO. 57 OF 2016
93. PW19 stated that he conducted the post mortem of the 3rd
deceased on 4th July, 2016 and that his CT scan revealed no
fractures, no bullet holes and his cartilages were normal.
94. PW19 stated that externally, the 3rd deceased body revealed
features of decomposition including skin spillage, swelling and
darkening of the skin. He stated that there was blood oozing
from the nose and mouth. He further noted a bruise on the
left cheek below the ear and a complete ligature mark and
bruise around the neck.
95. PW19 stated that internally, the 3rd deceased body had a
bruising on the surface of the thyroid cartilage, the hyoid bone
was loose but not fractured and there was bleeding on the
chest. He stated that the Lungs, Heart, Intestines, Liver,
Kidneys and the spleen were all decomposing. PW19 further
stated that there was a bruising on the scalp on the left and
back side. He stated that the brain was deliquified owing to its
decomposition and mixing with blood. He further noted a
bruise on the spine at the neck region area, hematoma,
bruising of the left forearm from the wrist and on the left leg
above the ankle and above the left knee.
96. PW19 indicated that his conclusion was that the cause of death
of the 3rd deceased was ligature strangulation. He explained
that the head injury was inflicted before the rope was tied to
the neck. Therefore, the immediate cause of death was the
ligature strangulation. He produced the post mortem in
respect of the 3rd deceased as P. Exh. 30, his CT scan report
P. Exh30a and the Post mortem addendum as P. Exh. 30b.
49 HCCR. CASE NO. 57 OF 2016
inflicted when they were alive because one only bleeds when
they are alive. In answer to a question put to him, PW19
testified that with the level of decomposition, it was difficult to
see the ligature marks on the bodies.
101. The issue of cause of death or causation of death, raised by
Mr. Michuki, is a challenge, inter alia, as to whether the 5th
accused really knew how the deceased were murdered, as it
is clear he did not himself either stand by to watch the
deceased being murdered, or participate in terms of
strangling, hitting, assaulting or any such way cause injury to
them. The fact is, by the time they ferried the deceased to
River Athi, they were dead as a result of assault executed
against them that night. In any event, in addition, the
evidence of Dr. Johansen that due to decomposition, injuries
may not have been easy to note, it is clear the deceased were
battered by their tormentors. The 1st deceased had his body
damaged with severe injuries from the head, neck, chest,
abdomen and testicles. For the 2nd deceased, he had severe
injuries on the head, neck and chest. I note their necks also
had injuries noted by the pathologist, which may as well have
been as a result of strangulation. It’s the 3rd deceased who
had clear ligature strangulation marks, and whose death was
clearly as a result of ligature strangulation.
102. I find no material variation between the 5th accused
confession and the findings of the pathologist. With the risk
of repeating myself, the point is, whether strangled or
battered, the deceased could not have murdered themselves,
51 HCCR. CASE NO. 57 OF 2016
108. Mr. Michuki submitted that the right of the 5th accused was
violated because the samples taken from him were illegally
acquired evidence contrary to Article 50 (4) of the
constitution. Counsel challenged the admission of P. exh. 72,
the Government Chemists Report which included the results
of analysis of samples taken illegally from the 5th accused.
Counsel relied on the provisions of Section 122A, 122B 122C
and 122D of the Penal Code. Counsel urged that PW44 and
PW45, both officers below the rank of inspectors took the 5th
accused for DNA sampling, without an order of an inspector or
above, without consent of the 5th accused and without a court
order.
109. Counsel relied on Abiud Muchiri Alex and Another V.
Republic [2015] eKLR. Philomena Mwilu V. DPP & 3
others [2019] eKLR and Restus Murkomen V. Republic
[2019] eKLR and urged that in light of the foregoing, and the
investigators failure to comply with strict statutory
55 HCCR. CASE NO. 57 OF 2016
10th April, 2015 and could no longer perform any duties. She
later got a job at an Mpesa Agent and doubled up as a boutique
salesperson employed by one Sylvia Wanjiku Wanjohi, the 3rd
accused herein.
118. PW4 stated that the 2nd deceased was arrested on 10th April,
2015 at Syokimau by officers from Mlolongo Police Station.
Having learnt of the arrest from her husband’s brother, she
went to the police station on the morning of 11th April 2015.
She stated that she noticed her husband had injuries on the
left lower arm, with bullet injuries that had passed through the
arm, hit his left front chest and exited on the back of the chest.
Upon enquiring from him what had transpired, the 2nd
deceased explained that he was shot in the process of asking
the officer who eventually arrested him, who he was. He
further explained to her that the said police officer took him to
Athi River Mavoko hospital and paid the bill for the treatment.
He said that the medical personnel at the hospital declined to
treat him and refereed them to Machakos General Hospital.
That instead of the police officers taking him to Machakos
General Hospital, they took him to Shalom Hospital in
Kitengela where he received first aid.
119. PW4 further stated that the 2nd deceased explained that after
treatment, he was taken to the cells where he was implicated
with gambling, resisting arrest and possession of cannabis.
PW4 stated that upon paying cash bail for the 2nd deceased for
his release in the cannabis case, he went to Kenyatta National
Hospital where treatment was commenced, and that it took
60 HCCR. CASE NO. 57 OF 2016
122. PW35 was an investigator with IPOA. He testified that the 2nd
deceased made a complaint with IPOA on the 25th July 2015
through an official IPOA Complaint Form Ref. No.
IPOA/CMU/869/2015. The Form was P. Exh. 74. The complaint
was handed over to him to deal and he opened a Complaint
File No.041/INV/Machakos/C/869. He testified that on 27th
July, 2015, he invited the 2nd deceased to his office where he
made a statement which PW35 reduced in writing, signed on
every page by the 2nd deceased. In brief, the statement was
to the effect that the 2nd deceased was shot by a policeman
who was in company of a policewoman. That the policeman
told the policewoman that he has shot the 2nd deceased by
mistake. That the policewoman told him to tramp up charges
against the 2nd deceased to justify the shooting. That the
policewoman gave him First Aid, after which he was taken with
vehicle registration number KBX 429G to Shalom Hospital.
That after he was X-rayed at the hospital, he was locked up in
the cells at Mlolongo Police Station, from Friday to Monday,
with charges of being in possession of bhang and gambling in
public. PW35 testified that he saw an injury on right upper arm
of the 2nd deceased, but that he did not have a P3 Form at the
time; and that he wrote in his statement that officers from
Mlolongo refused to issue him with the form.
123. PW35 testified that he personally went to see the OCS
Mlolongo Police Station and told him that a P3 Form should be
issued to the 2nd deceased. That it was issued on the 10th
September 2015, and completed by one Maureen Mutheu, a
62 HCCR. CASE NO. 57 OF 2016
128. PW5 further stated that the 2nd deceased explained to her that
around December 2015 he was blindfolded from his house by
the 1st accused and the late OCS Mlolongo Police Station CI
Wambugu, and driven to an unknown area and asked to run if
he was a total man. Upon declining and saying he would rather
be arrested, the 2nd deceased was taken to the police station
and later charged with traffic offences.
129. PW5 stated that after the second arrest, IJM relocated the 2nd
deceased and his wife, PW4 from Mlolongo where they resided
to a safe place, on 14th January 2016. PW5 explained that the
decision to relocate the two was informed by the fact that the
cases the 2nd deceased was facing involved police officers, and
his wife Rebecca was still working as an Mpesa Agent for one
of the Administration Police officers. PW5 stated that the 2nd
deceased was a boda boda rider before his encounter with the
1st accused and the other officers from Mlolongo, but that
during the rescue, he was not working because his hand had
not healed from the bullet injury.
130. The other officer from IJM that the 2nd deceased spoke to was
PW1, Mr. Edward Mbaya an advocate of the High Court
working at IJM. PW1 explained that IJM is a Multi-National
Organization that assists victims of police brutality, physical
assault and defilement get justice. PW1 stated that IJM offered
these services pro-bono, and that they also defended persons
charged in court that they believe are innocent. PW1 gave a
brief procedure of how they assess the cases that they take
up. He stated that they involve an investigator who
65 HCCR. CASE NO. 57 OF 2016
of 27th June 2016, shows that the 1st accused was stated to be
a suspect; yet at the time, no statement, no confession and
no data had been obtained. Learned counsel urged that the
IJM and the investigating team operated on suspicion without
any evidence.
143. Discussing motive, the Court of Appeal in Choge V. Republic
(1985) KLR1 , held as follows:-
144. The prosecution has adduced evidence to show that the 2nd
deceased made complaints against the 1st accused over a
shooting incident on 10th April 2015, in which he shot the 2nd
71 HCCR. CASE NO. 57 OF 2016
were clear that the 2nd deceased had not recovered from those
injuries, and could no longer perform any work one year after
the shooting.
147. Bearing these facts in mind, bearing in mind also that IJM had
taken over the cases against the 2nd deceased and were
defending him in court, when the 1st accused and his
colleagues were summoned by IPOA to give statements on
16th March 2016, it must have dawned on the 1st accused how
serious the matter had become. I find that these facts cogently
and firmly establish that the 1st accused had developed a
personal vendetta against the 2nd deceased. I find that these
facts establish that the 1st accused had a reason to silence the
2nd deceased. His job was on the line and actions towards
realization of that fact were underway through IPOA.
148. In regard to Mr. Ombetta’s submissions that there was
suspicion against his client even before any investigations had
been carried out, and before the bodies of the deceased had
been found. He urged that the investigations were carried out
to justify the arrest of the 1st accused. Counsel pointed fingers
against PW5 of IJM as one who instigated that suspicion. That
is not an accurate diagnosis. The evidence before the court
shows clearly that the 2nd deceased had filed a complaint
against the 1st accused with IPOA, and that this Agency did
not take up the investigations immediately. When nothing
seemed to happen is when the 2nd deceased approached IJM
for help. And this Agency (IJM) acted more swiftly, even taking
the 2nd deceased out of his environment and offered him
73 HCCR. CASE NO. 57 OF 2016
151. In his confession, the 5th accused gave his phone number
contacts as 0727433431 and 0795845584. He stated that he
resided within Waithaka. He stated that he was a police
informer, and that he was recruited by OCS Lelei (PW20) in
April 2011, who was at the time based in Kabete. 5th accused
stated that sometime in April 2016, he went to Mlolongo Police
Station to meet PW20 after he learnt that he had been
transferred to Mlolongo. He stated that PW20 introduced him
to three police officers in the Spiv Team. He stated that he
visited Mlolongo Police Station on several occasions after that
and became acquainted with 1st accused. That sometime in
early May 2016, 1st accused approached him and informed him
that a thug that he had shot and injured, wanted him to lose
his job. That in the last week of May 2016, he stated that 1st
accused called him on phone, and that they met at
Connections Bar in Mlolongo, where the 1st accused told him
that there was someone who had reported him to IPOA and
that his court case was coming up on 23rd June 2016, and that
they must act on that day. He stated that on 22nd June 2016,
he met 1st accused at the police canteen at Mlolongo Police
Station where the 1st accused told him that he wanted him to
follow the subject person after his court case, and update him
[1st accused] on all his movements. That 1st accused gave
him a mobile phone to use, but he could not recall the phone
number.
152. That on the material day of 23rd June 2016 he left his house
at about 5.30 am, and arrived at Mlolongo at about 7.30 am.
75 HCCR. CASE NO. 57 OF 2016
in the confession, which was similar for all the deceased does
not tally with the causes of death established by the evidence.
164. The other comparison Mr. Michuki made was the phone data
of the 5th accused. Counsel urged that the retracted
confession alleged that the 5th accused was given a cell phone
No. 0786 526 465 for purposes of communication for planning
and execution of the murders. Counsel urged that the phone
data contradicted what was stated in the retracted confession
in terms of time and place. That going by the data of both
phones, the phone data for No. 0786 526 465, P.Exh102c and
call data for No. 0727433431 belonging to the 5th accused P.
Exh.105b, the two phones were in communication, which
makes it illogical that the 5th accused could have been calling
himself. Counsel urged that it was clear the 5th accused did
not have the other phone as is alleged in his retracted
confession.
165. Concerning his movements on 23rd June 2016, Mr. Michuki
urged that he compared the phone data against the confession
and concluded that the timings as per the confession differed
with timings as per the data, and in some instances, the
location of the 5th accused in both documents did not tally. He
relied on the Court of Appeal case of Anupchadnd Meghji
Rupa Shah & Another V. Republic [1984] KLR which set
guidelines to aid the court determine the value of a retracted
confession.
166. Mr. Michuki submitted that the retracted confessions fails the
test laid out in Kapepere case, Supra, as nothing outside of
82 HCCR. CASE NO. 57 OF 2016
168. Mr. Mutuku urged that it was clear from his confession that
the 5th accused was present at the Soweto murder scene, but
not at the actual point where the deceased were murdered at
the time they were murdered; and urged that therefore the
5th accused description of the method used to cause death
83 HCCR. CASE NO. 57 OF 2016
was not as detailed since he was not together with the 1st
accused and Kamenju at the killing area. He urged that in his
statement on oath in court, the 5th accused testified that he
remained in the car while at Soweto before he was ordered to
drive to Ol Donyo Sabuk where the bodies were disposed of.
169. Counsel urged the court to consider the testimony of the
pathologist, Dr. Oduor PW19 who said that post mortem
injuries could not be ruled out. In that regard, Mr. Mutuku
urged the court to consider that the bodies of the deceased
were stashed in gunny bags; placed in the vehicle boots and
transported close to 100km, before they were tossed over a
bridge into River Athi, where they remained until 30th June
and 1st July 2016.
170. Regarding discrepancies between the retracted confession
P.Exh.90, and call data for No. 0727433431 belonging to the
5th accused, communicating with No. 0786 526465, Mr.
Mutuku submitted that PW22, PW44 and PW45 in their
evidence demonstrated that at no given time did the 5th
accused possess the No. 0786526465. He submitted that 5th
accused was in possession of No. 0786307473 while at
Mavoko Law Court, which he used to communicate with
number 0786526465, which line was in possession of the 1st
accused. Further, that the 5th accused number No.
0727433431 was in constant communication with No.
0786526465 at the time the bodies were being transported to
Ol Donyo Sabuk. He urged that that meant that the two lines
were in different vehicles as clearly tabulated.
84 HCCR. CASE NO. 57 OF 2016
note that the 5th accused in his defence in oral evidence said
that he saw the 1st accused once giving petrol money at
Soweto open field area at 10.15pm on the 23rd June 2016.
That he saw him again on 24th at his bar. Mr. Ombetta urged
the court to find that the 1st accused has shown that he was
home at 10:15pm on 23rd June 2016.
174. Mr. Kigen for the 3rd accused urged that the evidence adduced
by the prosecution in the retracted confession of the 5th
accused did not implicate the 3rd accused in any way.
175. Mr. Mochere for the 4th accused urged that the retracted
statement of the 5th accused places the 4th accused in Mavoko
law court, in the isolated area at Soweto and at Ol Donyo
Sabuk and in every action of the commission of the offence.
He urged that the statement came late in the day after arrest
of 4th accused, which was deliberately written to book the 4th
accused into the offence by conjoining him with the 1st accused
who he deputized at work. He urged that the confession fails
to fix 4th accused as he gave account of where he was in his
statement produced in court, taken from him on 4th July 2016.
Counsel urged that his mobile data P.Exh. 98B placed him
away from scenes of murder.
176. I have considered the rival submissions of defence counsels
and the State. The 5th accused had earlier at the trial moved
this Court by way of a Notice of Motion dated 7th August, 2019
seeking the court to review its earlier ruling admitting the
retracted confession of the 5th accused, in this court’s ruling
195. The evidence on the data that is P.exh 79 which was for the
radio phone P. exh 25, the evidence on the Note, the evidence
of PW10, 11 and 12 the evidence of PW20 and the evidence of
the retrieval of the bodies of the deceased from River Athi
comprises of independent evidence. That evidence was
consistent with the retracted confession of the 5th accused and
confirms that what was stated in the confession was the truth.
196. Furthermore, the Note P. exh. 7, collected outside the
Container used as a cell at the Post, bearing the handwritings
of the 1st deceased, are proof beyond any reasonable doubt
that the 1st deceased had been taken to that Post on 23rd
June 2016 afternoon as the 5th accused stated. The other
evidence was the vehicle KBX 126C, which ferried the
deceased to the Mavoko Law Courts, which was recovered in
Kamirithu, just as described by the 5th accused. The 5th
accused DNA from cigarette butts recovered at the Soweto
open field, where the murders took place.
197. I have carefully considered the retracted confession, and the
other evidence, as well as cautioned myself of the danger of
relying on the retracted confession of the 5th accused, P. Exh.
90. Having considered all the circumstances of this case, and
bearing in mind the independent evidence as enumerated
herein above, which I found to be consistent with the retracted
confession of the 5th accused I am satisfied that what the 5th
accused stated in his retracted evidence was the truth and
details what happened in this case.
198. The retracted confession by the 5th accused stated clearly the
plot and plan to murder, the different roles played by the
various actors to ensure seamless execution of their plan and
murder of the deceased, and the disposal of the bodies of the
deceased, 100 kilometers or more from the scene of murder.
I am satisfied, taking all the evidence and the surrounding
circumstances of the case into consideration, that there is
reason to believe the retracted confession by the 5th accused
is the truth of how the deceased met their death on the
material day.
199. I must at this juncture set out the 5th accused sworn statement
in his defence in court. The difference between the sworn
defence and the retracted confession. In his sworn defence the
5th accused maintains the structure of his story in the retracted
confession but drops some names and brings in new names
into the conspiracy of the murders and the execution of the
deceased persons; as well as varies the role he played in the
murders. He stated that when he realized that PW20, CI Lelei
was at Mlolongo Police Station, he started going there to sell
jeans, which is what he did for a living. That he did so on the
22nd June 2016. That on the 23rd June 2016 very early in the
morning he received a call from PW26, PC Wilson Kamau
asking him to report to Mlolongo Police Station that morning,
which he did and was there by 8:30am. He said that he found
PW26 with ‘Waingo’, and ‘Kamenju’ both Police Officers. That
PW26 told him that there was a ‘Kamwizi’ a thief, that he was
due to go to court for his trial that same day, that he wanted
98 HCCR. CASE NO. 57 OF 2016
to eliminate him and that his role was to keep track of the man
and keep reporting to Kamau.
200. That at the same time PW26 gave him a phone number to use
while calling him saying his had gone off. Of that number he
could only re-call 0786. He also changed the story saying it
was PW26 who called him to describe how the man he was to
track was dressed. The other variation he makes in his sworn
defence is that the Toyota NZE was with one ‘Brown’, and not
Kamenju as he had stated in his confession. Kamenju was also
there and that he was the one who handed over to him the
vehicle that the deceased left the court in. He varies his story
saying he was directed by PW26 to take the vehicle of the
deceased persons, and a small walkie talkie to a police officer
at Kamirithu in Limuru. He also changes his involvement,
saying he was left at a bar when PW26, Kamenju, Waingo and
Brown went away with one Mwaniki, a police officer to the Post
where the deceased were held. He said that Waingo found him
at the bar at 9pm and told him where to go to find PW26. That
was the Soweto area. He gives the names of those he met at
Soweto open field as PW26, Kamenju and Brown who were
standing together, while a distance away stood Mwaniki and
Waweru. Waingo joined them at 10pm.
201. He gives the role he played as that of sitting inside the vehicle
and driving one of the two vehicles. He also said that before
they drove to Thika from that scene, the 1st accused brought
money to PW26 to fuel the vehicle he, PW26, was driving as it
was a station vehicle. The other detail he added was that after
99 HCCR. CASE NO. 57 OF 2016
LOCI IN QUO
207. The prosecution built up its case around five scenes, the loci
in quo that featured prominently in the evidence of the
witnesses in the case. In addition to these scenes, it emerged
that there were underlying factors that formed, in an integral
way the background events that were the catalyst to the
sequence of the events of 23rd June 2016, leading up to the
murder of the deceased. I have, herein above dealt with some
of the underlying factors. I will deal with the issues identified
for consideration [as above], as well as cluster the various loci
in quo in as much of a chronological order as will be practical,
to determine whether the prosecution has discharged its
burden to prove its case against the accused persons, beyond
any reasonable doubt.
208. In regard to this scene all I need to point out here is the fact
that PW1 and the members who had accompanied him to the
court on the 23rd June 2016 had noticed that they, that is PW1,
the 1st and 2nd deceased and a colleague, were being
monitored and followed around the court precincts. The
evidence of PW1 establishes that they alerted the 1st deceased
that there were persons monitoring them at the court, but the
1st deceased insisted on PW1 leaving the court ahead of them
(the deceased persons). PW1 left the court precincts that
morning leaving behind the three deceased persons. PW1 did
KAMIRITHU
209. This is the site where the 5th accused, as per his retraced
confession and the sworn defence, he took the vehicle KBX
126C. That is the vehicle that took the deceased persons from
their respective homes to Mavoko Law Courts on the 23rd June
2016.
210. The prosecution case is that the three deceased were held at
this Post between midday of 23rd June 2016 and 1859 hours
when they were removed from there and taken to Soweto
open field. PW2 and PW3 were witnesses under the Witness
Protection Agency. They were cousins who worked at a
construction site in Mlolongo area. They gave similar and
corroborative evidence. They stated that on 23rd June, 2016
at about 1600hours they were coming from work together,
with PW2 riding a motorcycle and PW3 as his pillion passenger.
On getting to the Chiefs Camp at Syokimau, they both heard
the voice of someone calling them in a low tone, which
sounded more like whistling. They stated that the person was
beckoning them and appeared as if he was hanging on one
213. These two witnesses identified the piece of tissue paper with
the inscribed words as P. Exh.7, as well as the socket holder
as P. Exh.8. PW2 demonstrated how the tissue paper note was
folded and inserted inside the hollow part of the socket holder
104 HCCR. CASE NO. 57 OF 2016
when they picked it from the ground where it had fallen. PW2
explained efforts he made to reach the subscriber of the phone
number on the note, by sending to it “please call me”
messages from around 4:30pm. When he failed to get a quick
response, he bought Ksh.20 airtime and called the number.
214. PW2 said the recipient agreed that she was Rebecca and he
passed on the message and she replied that she would
confirm. PW2 stated that the said Rebecca called back and said
that he was a conman and that he should tell the writer of the
message that the method adopted would not succeed. PW2
and PW3 thereafter decided to go about their activities and
threw the note along a footpath leading to PW2’s home.
However, when PW2 switched on his phone after charging it
that night, he noted that several calls had been made to him
that night. He said that he decided to retrieve the note from
along the path where he had thrown it the following morning,
and eventually handed it over to IPOA and the police officers
who were accompanied by PW7 of IJM. PW2 accompanied
investigators to Syokimau Police Post on 24th June morning
where he identified the socket P. Exh. 8 at the same position
where he had thrown it on the evening of 23rd.
215. PW6 stated that having recovered the tissue paper note from
PW2 on 24th June 2016, he embarked on trying to establish
the author of the note. He sought for the known handwritings
of the three (3) missing persons from IJM. He stated that the
handwritings were forwarded by a letter dated 27th June,
2016, P. Exh. 11, signed off by PW13, and addressed to the
105 HCCR. CASE NO. 57 OF 2016
219. PW6 further stated that when the DCI took over the matter,
he handed over the documents to PW44, and they both signed
the Movement of Evidence Hand over Notes P.Exh. 19, dated
8th November, 2016. PW6 stated that before the 24th June,
2016, he did not know any of the deceased in this case, and
had not met the 2nd deceased at their IPOA offices.
220. PW8 stated that he is a Forensic Document examiner and that
he has worked as such for the last 16 years and also doubled
up as the Head of Document Examination at the DCI
headquarters. He stated that on 28th June, 2016 he received
P.Exh.7 marked d1, the questioned document and three
known handwritings of Willy Kimani, Josphat Mwenda and
Joseph Muiruri. A memo accompanied the documents from
IPOA signed off by PW6. He stated that he was asked to
compare the questioned document with the known
handwritings of the deceased persons.
221. PW8 stated that he reduced the forensic examination into a
report dated 30th June, 2016 which established that the
questioned document, P. Exh.7 (D1) was authored by one
Willy Kimani, as his handwriting matched that of the exhibits
marked A(1),(11) and A2. PW8 said that he concluded that
that the author of the questioned document was Willy Kimani.
He produced his report as P.Exh.18 and the exhibit memo as
P.Exh.17.
222. PW8 further stated that on 9th November 2016, he received
the document marked D1 P.Exh.7, which was the document in
question and a document marked J1 P.EXH 20 being a
107 HCCR. CASE NO. 57 OF 2016
from the evidence of the Crime Scene officers I find that if the
prosecution establishes that the three deceased persons were
taken to the cells at on the 23rd June 2016, the 3rd accused,
who was on duty as Cells Sentry and Report Office Personnel
saw them and therefore knew of their presence at the Post.
229. Mr. Kigen for the 3rd accused and Mr. Mochere for the 4th
accused took issue with the Note, P.Exh.7, urging that PW2
testified that he threw it away when PW4 disbelieved his
message. That since it had rained that night and it was muddy,
the Note in court had no signs of mud or wetness, and that it
looked neat and so could not have been the one PW2 threw.
Mr. Kigen suggested that PW6 must have coached PW2 and
PW3 on what to tell the court as the statement he took from
them was not availed, and urged the court to disbelieve their
evidence. Mr. Kigen urged that PW2 also took the Note from
the two witnesses and declined to hand it over to PC Juma of
Flying Squad.
230. The Note P.Exh.7 was before court. It was laminated to
preserve it, according to PW44 and PW45. There was nothing
neat about this exhibit, it was tattered and was only holding
together as a result of the lamination. On the other hand, PW6
was an investigator with IPOA, and had been directed by his
boss, Mr. Arodi, to proceed to the Post on 24th morning to
confirm whether any persons had been held there the day
before. IPOA had been investigating the complaints by the 2nd
deceased against the 1st accused since July 2015.
231. PW6 received the Note, P.Exh.7 from PW2 in that capacity. He
is the one who sourced known writings from IJM, against which
the document examiner based his results. He received P. Exhs.
12, 13, 14 and 16, the known writings of the three deceased,
from PW13 of IJM through letters P. Exhs. 11 and 15. He
forwarded the exhibits to the Document Examiner vide Exhibit
Memo, P.Exh. 17, and received the Report from them, as
P.Exh.18. The investigations were eventually taken over by
Flying Squad, to whom he handed in the Note.
232. There is nothing sinister in the involvement of PW6 into the
case. He was an investigator in the case before his
complainant was murdered. There is nothing to show that PW2
and PW3 were coached by this witness. I am satisfied, first
that PW2 and PW3 were credible witnesses. They did not know
the accused before. They had no reason to implicate the
accused persons with this case. Second, I find PW6 a credible
witness and his role in the matter was purely official and
professionally handled.
233. I find that the evidence adduced in regard to the Note, P. exh.
7 establishes without a doubt that it was in the hand of the 1st
deceased. It was thrown out of the container used as a cell at
the Post at 4pm on 23rd June 2016, within hours of the kidnap
of the three deceased. The message in the Note was an urgent
call for rescue from the hands of those who placed them at the
cells at the Post. I find that the prosecution placed the three
deceased at the cells at the post on the same afternoon they
243. The evidence of the witnesses, PW10, PW11 and PW12 confirm
seeing, first one vehicle which had three people standing
outside it, then later a second vehicle joined the first one at
Soweto open field between 7:30pm and 11pm. It was a place
without light and none of them was able to see the men
enough to identify them. PW10 described one as having a
police phone, similar to P.Exh.25 who was dark and tall, 5foot
6inches; and next to him stood another who was a slightly
taller man, brown in complexion, was smoking a cigarette, and
wore a shirt and jeans trousers. He described a third man who
he said was (his height) 5 ft 8 inches and wrapped himself
with a maasai shuka, similar to P.Exh26. He also described the
vehicle they had as a silver registration no. KBU. He could not
re-call the last numbers. He could not identify any of them.
244. The evidence of PW10, PW11 and PW12 confirmed the
presence of two vehicles at the Soweto area between 7:30pm
and 11pm on 23rd June, 2016. One of the vehicles had
registration No KBU. The witnesses did not master the rest of
the numbers. The second thing established by these witnesses
is that one of the men with the vehicles was smoking, and that
another one had a police radiophone. The men told PW12 who
had questioned them about their presence at that place that
they were police officers on duty.
245. There is no argument about this site. This is where the bodies
of the deceased were flung into River Athi, past midnight on
116 HCCR. CASE NO. 57 OF 2016
23rd – 24th June 2016. The bodies were retrieved from the
same river, on the 30th June 2016 and 1st July 2016.
TECHNOLOGICAL EVIDENCE
251. PW44 stated that from the information availed to him, the
number 0727 433431 was traceable at all the five sites that
were of interest. PW44 stated that he first searched the
subscriber number in all the social media platforms. Upon
searching in “True Caller” the name recorded against that
number was only one name “Brown”. He further searched on
“Face book” and found a picture and a name Peter Ngugi. The
picture was produced as P. Exh. 108. It is the very image of
the 5th accused. PW44 testified that on facebook he found
friends of Peter Ngugi, some of them were Police Officers at
Mlolongo Police Station. One such officer was Wilson Kamau
who testified in court as PW26.
252. PW44 testified that on 4th August 2016 he wrote to Safaricom
requesting subscriber details for number 0727433431. The
119 HCCR. CASE NO. 57 OF 2016
removed his sim card number 0734 426 104 from one of his
handsets, P.Exh 38, and handed the handset to Mr. Brown. He
said that his mobile phone handset was a Samsung make IMEA
number. 367186/05/106110/7.
256. Through the IMEA handset, PW44 established from the data
that the number inserted when PW22 gave it to Mr. Brown was
no +254786307473. That number was used in the handset to
communicate 15 times. Ten of the 15 entries were sms’s while
the remaining 5 were voice calls. Of importance is that the
number was in constant communication with the number of
the 5th accused and also another number, 0786 526 645
registered in the name of Moses Kariithi, PW39. PW39 denied
ever having such a line. He gave his phone numbers
0726850335 and 0733236232 he testified that in January
2016 he lost his Identity Card and that he reported the loss to
Mlolongo Police Station.
257. The two numbers, Subscriber No. 0786526465 was registered
in the names of Moses Kariithi, PW39; while subscriber No.
0786 307 473 was registered under the name of Charles
Nyaberi; on the same day, 22nd June 2016, at 1809hrs and
1800hrs respectively, at the same retailer shop by the same
agent No. 0737142957, within Mlolongo area.
258. From the findings of analysis, the 5th accused inserted sim card
for number +254786307473, and that that line was in
constant communication with the number of the 5th accused
0727433431 and number, 0786 526 645. This was while the
5th accused was at Mavoko Law Courts until the three
121 HCCR. CASE NO. 57 OF 2016
deceased were kidnapped and taken to the Post, while the 5th
accused drove KBX 126C to Kamirithu. That means, the 5th
accused continued using his personal line, and therefore the
two other lines were used by others who were part of the team
that executed the murder of the deceased. These two persons
are not mysterious, they must be among those whose names
the 5th accused has given in his confession and his sworn
evidence, without singling out or mentioning their names in
connection thereof.
259. The other line analyzed by PW44, No. 0716 876 388 was
registered under Birds Eye Auto Track limited, another number
traced in some of the sites. PW44 stated that this number
(0716 876 388) was fitted in vehicle no. KBX 126C for
purposes of tracking it. That vehicle was the one used by the
three deceased persons to make their way to Mavoko Law
Courts. The trajectory of the phone signal data, P.Exh.94B
shows that on 23rd June 2016 the vehicle was at Thogoto at
05:47hrs, then at Multimedia University along Ngong road at
around 07:03am and thereafter got to Athi River at around
0846hrs. The signal at Essar Athi River captures Mavoko Law
Courts, where the Vehicle was captured stationery at that
point from 0846hrs up to around 1200hrs. It was captured at
around 1215hours leaving the Mavoko law court precincts. The
data shows that the deceased were intercepted at a railway
crossing and their vehicle driven to Kamirithu. PW44 testified
that the vehicle was captured at Kamirithu in Limuru on the
night of 23rd June 2016.
122 HCCR. CASE NO. 57 OF 2016
260. PW1 and PW4 confirmed the evidence that this same vehicle
collected the 1st deceased at Thogoto before picking the 2nd
deceased at his new home after which they proceeded to Athi
River for the trial.
261. According to PW44, the line of Josephat Muiruri, 3rd deceased
No. 0710975734 and that of Willy Kimani 1st deceased No.
0720009198 lost signals while at Essar Athi River at around
1141hrs. The data for the two numbers were P.Exh.96B and
P.Exh.96D respectively. The Essar Athi River mast was near
Mavoko Law Courts. This confirms that indeed the three
deceased were at Mavoko Law Courts on the said date and
time.
262. The technical evidence of the data of the 1st and 3rd deceased
establishes that the three deceased left their homes on the
early morning of 23rd June 2016, for Mavoko Law Courts where
they reached by 0800hours where they remained up to few
minutes to midday.
263. The movement regarding this vehicle and the phones of the
deceased was also part of the 5th accused’s retracted
confession and his oral evidence in court. The 5th accused
admitted both in his oral evidence and his confession that he
was given the role to drive the vehicle no. KBX 126C from Athi
River to Kamirithu, after the deceased persons disembarked
from it, which he said he did. The 5th accused stated that he
was left with four phones belonging to the deceased, and that
he switched them off and disposed of them one at a time as
he drove to Kamirithu.
123 HCCR. CASE NO. 57 OF 2016
264. PW44 testified that the phone data of Fredrick Leliman the 1st
accused herein, No. 0722 939 198, and of Leonard Mwangi
Maina, the 4th accused herein were not spotted along the
scenes of interest at the timings in question.
265. The 4th accused’s data, P. Exh.98B shows that he was away
from the geographical location of Mlolongo. Indeed the 4th
accused gave an elaborate defence of his movements on the
22nd and 23rd June 2016, backed up by four witnesses. He was
DW6. He said he was on a five-day leave effective 23rd June
2016, supported by the Matching Order, P.Exh.111. The 1st
accused (DW13) supported that evidence. He called his wife
DW7 who told court that her husband came home on the
evening of 22nd June 2016, spent that night and the following
nights until he went back to work five days later. The 4th
accused called DW8, his colleague with whom he had kuku
bahati lunch and also visited a construction site with him
within Ruiru. DW9 and DW11 who were siblings confirmed the
4th accused testimony that he met each of them separately in
the evening of 23rd June, at Thika Township. The phone data
of the 4th accused supported his movements as per his
defence, and testimony of his witnesses
266. The phone data of the 1st accused, P.EXH.98D showed that the
first part of the day he was enroute from Mlolongo. However,
at around 13:00hrs, the data spots him at Mlolongo Police
124 HCCR. CASE NO. 57 OF 2016
268. Mr. Ombetta for the 2nd accused submitted that the phone data
of the 2nd accused supported his defence of the times he was
not at the Post, which is the times the deceased were brought
and later taken away from the Post. Mr. Kigen for the 3rd
accused submitted that the 3rd accused played no role, was
not mentioned in the confession by the 5th accused and that
all that her phone data established was that she was in the
125 HCCR. CASE NO. 57 OF 2016
locations claimed, but that that did not connect her to the
offences. He also urged that PW18 in his evidence confirmed
that the 3rd accused left the Post at 1830hours. Mr. Kigen
urged in the alternative that the court should consider the
Police pecking order and find that the 3rd accused being a
junior officer had to obey orders.
269. PW44 presented the phone data for line No. 0720 388 784
registered under Stephen Cheburet Morogo the 2nd accused
herein. He testified that the phone data for the 2nd accused, P.
Exh.100B shows that on 23rd June, 2016 at 0619hours, he was
at Syokimau Kiungani which is within the AP Post. At around
0842hrs his phone was at Mlolongo Police station. This is also
around the same time that 5th accused arrived there from
Waithaka.
270. At 0924hrs, the signal locates 2nd accused phone was around
Essar Athi River which covers Mavoko Law Courts. PW44 said
that that was also the same time that 5th accused arrived at
the Law Courts Premises. At around 10:40hrs to 10:48hrs the
2nd accused phone is located at Athi River Trans-view which is
where the railway line, the site of the kidnapping is located.
At 11:13hrs to 12:01hrs, signal is along Mombasa Road
whereas at 12:10hrs it is at Caltex depot. At 12:12hrs, signal
is back at Syokimau AP Post and it remains there up to
1849hrs without leaving. The time of 1212hours is crucial
because it was around the same time that the deceased
persons were transported to the Syiokimau Police Post, and
placed in the cells, and kept until evening. Between 1830hours
126 HCCR. CASE NO. 57 OF 2016
and 1900hours the deceased were taken from the Post to the
Soweto open field, the murder scene.
271. PW44 stated that at around 1851hrs the 2nd accused phone
signal was recorded at Caltex Depot and 9 minutes later at
Mastermind Mombasa road. At around 1906hrs, PW44 testified
that the 2nd accused’s phone was captured at Mlolongo Police
station where he stayed up to around 2002hrs before going
back to Mastermind, the Soweto open field area. At around
2220hrs the 2nd accused phone went off since no further data
was collected.
272. PW44 testified that No. 0719 644 520 was registered under
Sylvia Wanjohi who is the 3rd accused herein. Her phone data
P.Exh.97B shows that on 22nd June 2016, she was at Mlolongo
until 2005hours when she returned to the Syokimau A.P camp.
PW44 testified that on 23rd June 2016, the phone data reveals
that the 3rd accused was within Syokimau Camp as from
1009hrs to 2231hrs. Between 2231hrs on 23rd June and the
morning of 24th June 2016, there was no data generated from
her phone which meant that the phone was switched off. PW44
stated that it meant that the 3rd accused was stationed at the
camp throughout the day of 23rd June 2016, and never left the
station between 1009hours and 2031hours.
273. Given the circumstantial evidence adduced against the 2nd and
3rd accused, what was required of them in law is an
explanation to rebut the statutory presumption created by
virtue of the fact their phone data placed them in all the loci
in quo as described in respect of the 2nd accused, and in the
127 HCCR. CASE NO. 57 OF 2016
Post at all the relevant time in respect of the 3rd accused. The
2nd and 3rd accused do not deny that the phone numbers were
theirs. That means that what happened at the Post, in respect
of the 3rd accused, and what happened in the loci in quo in
respect of the 2nd accused was within their knowledge, and
that it was in their best interest to offer a reasonable and
plausible explanation in that regard. Under Section 111(1) of
the Evidence Act, the 2nd and 3rd accused have a statutory
burden to give an explanation to rebut the statutory
presumption created by the circumstantial evidence that they
were involved in the murders.
274. The Supreme Court in Republic v Ahmad Abolfathi
Mohammed & another [2019] eKLR, Petition 39 of 2018
held that:
275. The data on the phone of the 2nd accused (DW1), P.Exh.100B,
contradicts his testimony of where he spent the day. The 2nd
accused did not deny having his phone and using it on the 23rd
June, 2016. His testimony was that he left the Post at
0600hours for Athi River for personal matters, which he
completed doing at 0950hours. He then testified that he
proceeded to City Cabanas, an area covered by Caltex
Mombasa Road Mast, where he met with the 2nd accused for
purposes of viewing a cooker at Ramtons Supermarket. He
said that they returned to the Post and that he was there from
midday to 1800hours.
276. The 3rd accused in her unsworn defence told the court that she
went with the 2nd accused to City Cabanas on 23rd June. She
stated that she spoke with PW18 to hold fort. She then said
that she left for Cabanas at 1100hours and reached there at
1130hours. She said she returned to the Post at 1230hours.
She then said that she left the station at 1830hours having
given the keys to the cells and armory to PW21. She said that
she was given a lift from the Post at 1830pm to Mlolongo
where she stayed until 2000hours. Her witness DW3 in his
evidence said that he picked the 3rd accused at the Post at
1840hours, and dropped her at Mlolongo at 1910hours.
277. The 3rd accused called DW4, CPL Faith Mutiso who told the
court that when she entered in OB at the Post that she had
129 HCCR. CASE NO. 57 OF 2016
signed out of day duty at 1700hours, she did not find the 3rd
accused at the report office.
278. I considered the unsworn testimony of the 3rd accused. Her
evidence was that she was on duty at the Post between
0600hours and 1800hours. PW18, the one the 3rd accused
claimed she left at the Post to hold her fort between 1100hours
and 1230hours denied ever receiving such a request. PW18
testified that he was the Duty Officer at Mlolongo Police
Station, and that he was leaving the Post for duty at around
1230hours when he met the 2nd accused returning to the Post.
The 2nd accused admitted in his evidence that he met with
PW18 leaving the Post as he returned at 1230hours.
279. The evidence of PW21 was that he found the 2nd and 3rd
accused at the Post chatting away at 1830hours when he
returned there from a one day’s leave. He testified that the 3rd
accused gave him the keys to the cells and armory between
1900hours and 1930hours. That evidence is consistent with
the 3rd accused phone data. The evidence of DW3 that he
picked the 3rd accused outside the Post at 1840hours is also
not correct in terms of time. For DW4, her evidence
contradicts the evidence of the 3rd accused, saying the 3rd
accused was not at the station at 1700hours.
280. The prosecution has shown that the 2nd accused was present
at all the loci in quo except for Kilimambogo, that is, at Mavoko
Law Courts where the three deceased attended a court
session. That he was at the Railway line where the three were
kidnapped at the time it happened. That he arrived at
130 HCCR. CASE NO. 57 OF 2016
284. Mr. Kigen submitted that due to the pecking order and that
due to the junior rank of the 3rd accused she had no choice but
to obey. Mr. Kigen submitted that the 3rd accused Data shows
that she did not communicate with co-accused or deceased,
and was not at any of the sites which was the scene of murder.
286. The prosecution proved that the 3rd accused was at the Post
between 1009am to 1900hours, that due to the opening
between the Cells and the Report Office at the Post, the 3rd
accused must have seen the deceased in the Cells. It was
established that she was the sole officer on duty at the Post.
Thus she was responsible for the key to the cells, and had
custody of them.
287. The submissions by Mr. Ombettta and Mr. Kigen for the 2nd
and 3rd accused respectively, that the phone data of their
clients were in line with their defence is not accurate. Their
defence was in direct contradiction with their phone Data as
shown here. The alibi defence the two put forth as their
defence was totally displaced, as 2nd accused phone data
captured him at all the loci in quo where the crime sites were
located, at the very relevant times the events in question took
place. The only place the 2nd accused was not located is the
journey from Soweto open fields to Kilimambogo areas. That
means that the 2nd accused was involved in the entire
execution phase of the murder of the deceased from the time
he proceeded to Mavoko Law Courts, all the way to the time
he proceeded to Soweto open fields, and remained there until
8pm when he switched his phone off.
288. For the 3rd accused she was at the Syokimau Post Post
continuously the entire day from 10:09am to past 07:00pm.
which are the times the deceased were placed in cells and later
collected for the murder site.
289. Chapter V of the Penal Code is titled “Parties to Offences”
Section 20 deals with Principal Offenders and provides:
“ (1) When an offence is committed, each of the
following persons is deemed to have taken
part in committing the offence and to be guilty
of the offence, and may be charged with
actually committing it, that is to say—
290. In my considered view, given the fact that the 3rd accused was
the police officer manning the OB desk and also had the keys
to the cells, where there was no entry in the Occurrence Book
or in the Cells entry made to indicate that the deceased
persons were held at the station, she was a principal offender.
There is no way the deceased could have entered the cells
without her releasing the key to open it. She could not feign
ignorance of the fact the deceased persons were in the cells
as from the evidence of PW14 and PW39, her desk in the
report office was at par with the opening between the report
office and the cells. She was on duty continuously between
1009am and 1930hours, and present at the Post all that time
as per her phone data. Being a police officer, the 3rd accused
knew the importance of keeping proper and up to date records
at the Post. It ought to have occurred to her that there was an
illegal and wrongful intention to secretly detain the deceased
at the Post the moment no entry was made in the OB. The 3rd
accused is a principal offender within the meaning of Section
20(1) (b) & (c) of the Penal Code, and her position is similar
to the persons who committed murder against the three
deceased.
291. If the 3rd accused had dissociated herself from the other co-
accused by some action, in order to show that she was not
with them in the offence, then her role could have turned out
137 HCCR. CASE NO. 57 OF 2016
actually committed.”
299. For the 2nd, 3rd, and 5th accused, I am satisfied beyond any
reasonable doubt that the prosecution has established that the
accused persons were principle offenders, acted with one
common intention to commit the offences charged as
explained herein above. The evidence adduced by the
prosecution against these three accused, which was largely
circumstantial evidence was sufficient to lead to a conclusion
that the accused persons murdered the deceased persons.
300. As to the alibi defence the 2nd and 3rd accused put forward, I
am satisfied that it has not shaken the prosecution evidence
against them.
TRAJECTORY
301. PW37 was an officer based at the Integrated Communication
and Command and Control House (IC3), Inspector General’s
Office Jogoo House, Nairobi. He testified that IC3 is a Centre
where all the 999 and 112 Emergency Numbers are received.
141 HCCR. CASE NO. 57 OF 2016
303. I have already dealt with the evidence regarding the vehicle
Reg No. KBX 126C when dealing with retracted confession and
the sworn of the 5th accused. The data produced by PW37 of
this vehicle tarries with retracted confession and the sworn
defence.
142 HCCR. CASE NO. 57 OF 2016
which was tracked in all the loci in quo, and nine days later
was found with him.
314. I have considered the sworn testimony of the 1st accused. The
1st accused stated that upon deployment from Athi River Sub-
County Headquarters to Mlolongo Police Station following his
transfer from Turkana to the region, his boss, DW10
Commissioner of Police, issued him with a firearm, bulletproof
jacket and a radiophone. The 1st accused gave its number as
Police No. 55903101 and the IMEI No. 86410602031076,
P.exh 35. The 1st accused stated that it was that radiophone
that he and his Spiv team used for their work.
315. He explained that he could not have given this radio phone to
anyone else except Sgt. Mwangi as the other officers were
from regular police. That since the 4th accused was proceeding
on short leave, he went home with the radio. That on 23rd June
2016 it was at home. That on 24th June 2016 he left the radio
charging at Mlolongo Police Station, Crime office, when upon
switching it on in the morning of 24th June, he realized it had
no charge.
316. The 1st accused was arrested on the 1st July 2016, carrying the
radiophone P. Exh. 25. When asked how come he had it, yet
his evidence was it was never used by his team, or ever issued
to them, he said that he left his radio P.Exh.35 charging in the
office on the morning of 24th June 2016. That he proceeded
to Makindu Police Station but on his return, he could not find
it, so he grabbed the one he found charging, which happened
to be P. Exh.25.
146 HCCR. CASE NO. 57 OF 2016
where the 1st accused house was, where he lived with his
family at the time; Five, the 1st accused was carrying the radio,
P. Exh. 25 on the 1st July, 2016 when he was arrested at Flying
Squad Offices where he had been summoned. Lastly, since the
1st accused said that he was the one who had the radio phone,
P. Exh. 36 on the morning of 24th June 2016 when he left it
charging in the office, how did it get to the house of the 4th
accused, in its box wrapped as new, complete with the
protective film on the screen? Yet the 4th accused was away
between night of 22nd June 2016 to 27th June 2016. How did it
get to 4th accused house?
319. The evidence of the police radiophone trajectory detailing the
movement of the radiophone P.Exh.25, on the 23rd June 2016,
and the evidence of its recovery from the 1st accused nine days
later, all show that the 1st accused as in-charge Spiv, and in
line with accountability protocol of accountable gadgets like
police radio phones, had custody of the radiophone, and had
used it exclusively at all the five loci in quo at the time the
offences were committed. The prosecution proved that the
radio issued to the 1st accused by DW10 was never put to use.
I find that as the radio indicated, the 1st accused was at the
Mlolongo Police Station on the 23rd June, 2016. He proceeded
to Mavoko Law Courts, them to Syokimau Police Post, to
Soweto later that evening where the deceased were all
murdered and to Kilimambogo through Thika Superhighway to
dump the bodies of the three deceased persons; before
324. The 1st, 2nd, 3rd and 5th accused are informed of their right of
appeal within 14 days of today.
JESSIE LESIIT
……………………
JUDGE
For the Victims………………….. Ms. Janise Muchemi (h/b for Dr. Fred
Ojiambo
Court
A man told his son that he wanted to teach him a new trade so he
asked him to follow him.
They went to the neighbours farm and stood next to a tree. The
father told the son to look around as he climbed up to pluck some
mangoes. He told him that his role was to look around, and if he
saw anyone, anyone at all, to start running home and his father
would follow to avoid arrest.
So, the old man climbed the tree. After five or so minutes, the
father saw his son running, so he climbed down and followed him.
After running for some time and seeing no one following them the
father stopped his son and asked him why he ran, telling him that
he did not follow his instructions.
The son said, ‘No but I did follow instructions, I looked up and saw
God looking down on us and so I ran.’
JESSIE LESIIT
………………………
JUDGE