Introduction
1. The accused SGT JOHN OTIENO faces a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code.
2. Particulars of the offence are that SGT JOHN OTIENO on the 13th day of August 2016 at Uwanja wa Mbuzi area within Kongowea Location within Mombasa County murdered TONY KATANA.
3. The prosecution called 19 witnesses to support its case that the accused person committed the offence herein and he was placed on his defence.
Prosecution Case
4. PW1, Ruth Syombua, testified that on 12th August 2016 at 9.00 pm, her son Tony Katana the deceased herein asked for permission to attend a wedding in the neighbourhood in the company of Edgar, Saddam and Alex. That by midnight when she went to sleep, the deceased had not come back. The following day on 13th June 2016 when she woke up and found the deceased had not come back, she went to his friends and asked where he was but the deceased person’s friends also asked whether the deceased had returned home. PW1 said she continued searching for her son until 12.00 noon when she stopped the search but at 3.00 pm, her other son Henry went and told her to go and talk to Edgar. That when she talked to Edgar, he told her that when they left the wedding to go home as they were crossing Uwanja wa Mbuzi, they saw a group of people seated in darkness. That when those people told them to stop. They feared and started running away. That Tony fell and they heard gunshots. She said that Edgar told her that when Tony fell, they continued running as they heard gunshots.
5. PW1 visited the police station to confirm if there was a report concerning her son but there was none. That she proceeded to where the wedding was in Karama and some elders showed her the scene where a young man had been shot and killed. That she proceeded to Coast General Hospital where she identified the body of her son in the mortuary. On 14th August 2016, she went to Nyali Police Station but her report was not booked until 29th August 2016. PW1 said she identified the body for purposes of postmortem.
6. In cross examination, PW1 said she did not know the name of the bride and groom who were wedding at Karama area and she did not know what happened at Uwanja wa Mbuzi as she was at home. She said that Saddam and Edgar also did not know who shot the deceased and she also did not know who killed the deceased.
7. PW2, Edgar Mokua Mosoti, 20 years old resident of Bamburi Estate testified that on 12.8.2016 at 6.00 pm, he went to a wedding in Kongowea in the company of Tony, Alex, Saddam and Felix among others whose names he could not remember. He said they stayed at the wedding until the ceremony ended in the morning before they left. He also said that they left when they were bored to go to another wedding across Uwanja wa Mbuzi.
8. PW2 testified further that on their way, they found people at the field under a tree. Some of the people were seated others were standing. He said it was dark but he could see images of people. He also said that there was floodlight mounted in the area. He said that the people who were under the mango tree ordered them to go where they were and before they could go, one person started approaching them and in fear, they ran away. That when they started running, they heard gunshots. He said that he and the deceased had remained behind and when he saw the deceased fall, he ran and hid. That the person who was running after them caught up with Tony and asked what they were doing. That Tony told him he was a student and that he had come from a wedding. That this was followed by gunshots and everything went quiet.
9. PW2 said that Tony fell about 7 meters from where he was hiding but he did not see who shot Tony. He said that when he confirmed it was quiet, he went back to the wedding and found his companions but Tony was not there. That they remained in the wedding until in the morning but he did not tell anyone what had happened as he was in shock. The following day he reported to Tony’s mother and she started searching for him and found Tony was dead. PW2 said they did not carry anything when going to the wedding.
10. In cross examination, PW2 said he did not know the groom and bride of the wedding that they attended. He said that they did not count the people that they saw under the mango tree and he did not see who shot at them as he was running. He said that it is him and Tony who were older of the boys who accompanied them. He said that he was seeing the Accused for the first time.
11. PW3, Saddam Ibrahim, testified that he was 10 years old in 2016 and that on 12th August 2016 at 9.00 pm, he was with his friends, among them Edgar, Alex, Elvis, and Tony when they decided to go to a wedding. But when they got in the middle of the field, someone who was under a tree with about 4 others ordered them to stop. That the people were in civilian clothes and when they were ordered to stop, they started running. While running, he heard gunshots and on looking back he saw Tony had fallen. That when he continued running, he heard another gunshot and he went and reported to his parents what had happened. He later learnt that Tony had died out of gunshot wounds. He said in cross- examination that he did not know that the people who stopped them were the police.
12. PW4, Alex Nyanega Mosoti, 20 years old said that on 12th August 2016 at around 8.00 pm, there was a wedding behind the mosque and they went to the first wedding where they were dancing and at midnight they decided to go to the 2nd wedding. He said he was with his brother Edgar, Alex, Saddam, Buku, and others. He said they were many and on their way they came across people in civilian clothes seated under a mango tree and one of them stood and ordered them to go to where they were. That because it was at night and they did not know who the people were, they started running away. That before they could cross the road, they heard gunshots and Tony who was ahead of him fell. That he ran past Tony and went back to the wedding place. That the boys who were in his group arrived at the wedding through their own way but Tony and Felix were missing. That they remained at the wedding until the next morning and when they met Felix, he told them that he hid in a trench and that Tony had been killed. PW4 said he was not able to identify the people who chased them and the Accused Person was not known to him.
13. In cross examination, PW4 said he did not know the brides in the two wedding and he only knew one groom in the two weddings. He also said that he did not know the exact time when they decided to go to the 2nd wedding as he did not have a watch. He said he did not know if it was the police who shot Tony because the people under the tree were in civilian clothes. In re-examination, he said that he was able to identify the assailant as the Accused Person who was of medium height and big belly who was dressed in checked shirt and a cream trouser. On being cross examined on new issues raised in re-examination, he said that in his statement, he did not say he identified the assailant, how the assailant was dressed or even his physique.
14. PW5, Rtd CIP Joseph Kiplagat Cherutich, testified that on 13th August 2016, he was the OCS, Nyali Police Station when the Accused Person herein together with PC King’ori and PC Faraji were deployed at the crime office. That they were deployed to patrol under cover as there was an outcry that there were young men armed with machetes and knives that were terrorizing members of the public within Kongowea area. He testified that PC King’ori called and informed him that there were young boys spotted around Uwanja wa Mbuzi around Kongowea area who were terrorizing members of the public. That he authorized them to proceed with the operation in the area.
15. PW5 testified that within 3 minutes, he received another call from PC King’ori that one person had been fatally shot. That he instructed PC King’ori and the other officers on patrol to remain at the scene until the duty Officer Sgt Wekesa arrived. That on arrival Sgt Wekesa reported to him that he found the dead body of a boy between 14 and 16 years and also recovered a machete and a knife. That when the concerned officers went back to the station, he told Sgt Aduol to write the report himself.
16. PW5 wrote signals to inform the DCI HQs, Regional HQs, County and Sub-County HQs of what had happened. That when he interrogated the police officers, PC King’ori said he is the one who fired the fatal shot. That he instructed the officers to record a statement to show cause why the shooting took place and assigned Sgt Nyasini to compile an inquest file. Inquest File No. 48 of 2016 was opened and Sgt. Wekesa recovered a gun from PC King’ori which had 5 rounds of ammunition missing. PW5 said he personally returned the Accused Person’s gun to the armory and renewed it as it was intact with 15 rounds of ammunition which had been issued to him. He said that he was also not informed if PC Faraji expended any ammunitions.
17. PW5 said Independent Police Oversight Authority (IPOA) took over investigations and he handed over to them the Occurrence Book and PC King’ori wrote what happened in OB for 12th and 13th August 2016 – ExP1(a) and (b). He also produced the Duty Roster – ExP2(a), (b) and (c).
18. PW5 in cross examination said that the three firearms that were issued to the 3 officers were never taken for examination as the Investigating Officer did not go for them. He also said Sgt Wekesa recovered a knife and a machete from the deceased but he did not see them.
19. PW6, IP Timothy Wekesa, testified that on 12.8.2016, he was working at Nyali Police Station and he was in charge of all patrols within the Police Station Area. That in company of PC Njoka, PC Ngali and PC Alex Murithi, they patrolled throughout the day until on 13.8.2016 at about 1.00 am while they were within Leisure in Kisauni, the OCS Nyali called and informed him that there was a shooting incident in Kongowea, Karama area Uwanja wa Mbuzi. On proceeding to the scene, he found Sgt John Otieno the Accused, PC King’ori and PC Faraji who were in civilian and were on patrol in the area. He said the scene was on a corridor in the slums, far from the road. They found the body of the deceased and found PC King’ori holding a panga alleged to have been recovered from the deceased. He said that the body had 2 bullets on the buttocks and one on the face. He said that he searched the body and recovered a knife hidden inside the trouser on the left side of the waist.
20. PW6 also said that the Accused was issued with a firearm by Sgt Joseph Lepiri by instructions of the OCS on 12.8.2016 and on return on 16.8.2016, it had all the ammunition. He said that PC Faraj Masoud was also issued with a firearm by Sgt Lepiri and it was returned on 18.8.2016 and no single shot was fired from it. That the 3rd firearm was issued to PC Benard King’ori on 12.8.2016 but when he checked the firearm on 16.8.2016, 5 rounds of ammunition were missing and it appeared that the 5 rounds were used. The firearms register for the period 1.9.2014 to 3.8.2018 was produced as ExP6. He said that the machete and knife were handed over to Sgt Joseph Nyasini who was investigating the incident.
21. In cross examination, PW6 said that the scene of crime was very dark and it was not possible to identify anyone as there was no light. He said that when he found PC King’ori’s firearm had 5 rounds of ammunition missing, he was of the opinion that they were used at the shoot-out at Uwanja wa Mbuzi although he did not recover any used cartridges. He said the firearms were not taken immediately from the police officers until much later and he did not know if they were preserved. He said PC King’ori handed over to him the panga that was recovered from the scene.
22. PW7, Sgt Stephen Nyamai, Scenes of Crime Officer took photographs of the body of the deceased at the Coast General Hospital Mortuary on instructions of Sgt Wekesa of Nyali Police Station. He produced the photographs as ExP7(a) – (f) and Certificate as ExP8.
23. PW8, Cpl Anthony Mwangi, attended to the postmortem examinations on 24.8.2016 and 6.9.2016 where Dr. Mbuko on examination on the later date removed one bullet head from the neck of the deceased and the other from the thigh of the deceased. The 2 bullet head were packed and sealed in 2 clear containers and handed over to the Deputy OCS David Lang’at as the Investigating Officer Sgt Nyasimi was not at the station.
24. PW9, Cpl Leonard Korir testified that on 1.3.2018, he was standing in for the in charge armory at Nyali Police Station when the OCS instructed him to prepare and hand over 2 firearms namely Ceska Serial Nos. F2318 and A050527 to PC Raphael Kogo who was in the company of IPOA staff Nicodemus Kipkemboi. That PC Kogo then proceeded to the dog section Kisauni to be accompanied by PC Okaka. He identified the Ceska Pistol Serial No. F2318 as ExP4. He said that the 2nd firearm Ceska Serial No. A050527 was also branded as KPA050527. In cross examination, he said the 2nd firearm also bears the branded number of Kenya Police and that is the one that he handed over to PC Kogo.
25. PW10, Cpl Michael Okaka testified that on 1.3.2018, he was instructed to accompany Cpl Kogo to Nairobi and escort two rifled to CID Headquarters. He said the rifles were picked from Nyali Police Station and that in Nairobi the rifles were handed to the ballistics. He said in cross examination that the rifles were serial numbers F2318 and A050257.
26. PW11, Inspector Joseph Nyasimi testified that on 13.8.2016 when he reported on duty and perused the OB, he found that there was a shooting incident that had occurred the previous night and the same was minuted to him for investigations. That he opened Inquest File No. 48 of 2016 in which the deceased was Tony Katana. That he recorded the statement of the mother of the deceased and detailed PC Anthony Mwangi to attend to the postmortem where 2 bullet heads were removed from the body of the deceased. He said the 2 bullet heads were sealed in an envelope with transparent envelope and later taken to the Ballistics Expert for examination. PW11 also caused the officers involved to record statements. He said that the recommendation of the DPP was that the file be closed pending any evidence coming up. He said he did not find any evidence connecting the Accused to the offence of murder as it could not be established from whose firearm the bullet was fired as it was at night.
27. PW12, Dr. Abdul Aziz Mohamed produced the Postmortem Report prepared by Dr. Mbuko on 24.8.2016 in which it was concluded that the cause of death was traumatic spinal damage due to bullet injury. On 16.9.2016, an x-ray of the body was done and a bullet was removed on the back of the neck and the 2nd bullet was removed from the medial right thigh. The Post Mortem Report is ExP11.
28. PW13, Sgt Paul Lepire, said that on 12.8.2016, he was at Nyali Police Station when he renewed possession of firearms to 3 officers namely Sgt John Aduol – Ceska Serial No. A050253 with 15 rounds of ammunition, PC Faraj Masud – Ceska Serial No. F4348 with 15 rounds of ammunition and PC Benard King’ori – Ceska Serial No. F2318 with 15 rounds of ammunition. PW13 said that they were going for patrol duties and that he later handed over the armory to Sgt Timothy Wekesa who was the in charge armory. PW13 identified the three firearms in court and produced the Arms Movement Register as ExP6.
29. PW14, No. 235989 IP Joseph Langat said that on 6.9.2016, he was at Nyali Police Station as Deputy OCS and at around 10.00 am, PC Anthony Mwangi went to his office from Coast General Hospital after attending a postmortem of a person who had been shot dead. That PC Anthony Mwangi was carrying 2 clear containers with bullet heads and that he was in the company of police officers from IPOA, human rights activists and members of the press. That with instructions from his boss, PW14 handed over the exhibits to IP Christopher Kenga who together with police officers from IPOA, human rights activists and members of the press proceeded to Kisauni Sub-County Headquarters.
30. PW15, No. 49496 CPL Raphael Kipruto Kogo testified that on 1.3.2018, he was at Kisauni Regional Headquarters and had been assigned duties to collect pistols from Nyali Police Station and he took them to DCI Nairobi Ballistics Laboratory Serial Numbers F2318 and A050257. That the two pistols were wrapped in a khaki envelope and the IPOA officers who accompanied him to Nairobi from Nyali were Nicodemus Kipkemboi and Fauzi Mwalimu. That they arrived in Nairobi at 2.00 pm and handed over the pistols to the Ballistics Expert who signed for it and they returned to Mombasa.
31. PW16, No. 231165 SP Alex Ndindi Mwandawiro attached to Forensic Ballistics DCI Laboratory as Firearms Examiner said that on 1.3.2018, their lab received some exhibits from No. 0131 Nicodemus Kipkemboi of IPOA and No. 49496 PC Rafael Kogo. That the 1st exhibit was E1 Pistol Serial No. F2318, the 2nd Exhibit E2 Pistol Serial No. A050527 and two fired bullets marked A & B. That subsequently on 3.5.2018, the lab received one exhibit from IPOA Officer No. 0131 Nicodemus Kipkemboi and No. 95203 PC Bernard King’ori and the exhibit was marked E3was a pistol Serial No. F4348.
32. PW16 said he examined the exhibits E1, E2 & E3. That on physical examination of Exhibit E2, with police markings KP050257. That the officer assigned to put inscriptions interchanged some numbers because of how markings are done. That the officer who inscribed interchanged the numbers to KPA050257 when it should have been KP0520527. PW16 said he test fired the three firearms using 9 rounds of ammunition which were from the stock in the lab. That he recovered the test cartridge case and bullets for purposes of comparative analysis. PW16 said that from the examination, he formed the opinion that E1, E2 and E3 were firearms as per the Firearms Act.
33. PW16 testified that he examined the fired bullets. Exhibit A – caliber 9 mm which revealed that the bullet was slightly deformed and had 6 land and engraving areas with a right hand twist meaning the bullet would spin clockwise as it goes from the gun to the target. PW16 said that he also examined exhibit B – the fired bullet caliber 9mm and he observed that it was damaged at its nozzle area. That it had 5 land and engraved areas out of a possible 6 which means that were it not for deformity on the nozzle area, there would be 6 lend and engraved areas. That both Exhibits A & B had some blood-like stains on their surfaces and when he compared the 2 bullets, he found they were fired from one gun. That he went further to compare A & B in conjunction with the 9 test bullets fired in E1, E2 & E3.
34. PW16 said that his observation revealed that A & B were fired in exhibit E2 and the basis of his findings was because he would find markings on A & B which were also repeated in the test bullets fired in E2. That even if there were 2 firearms of the same make and caliber following the same manufacturing process, the markings they would leave on bullets would not be the same. That each firearm has its unique individual characteristics which forms the basis of forensic ballistics. PW16 said that he prepared a report dated 3.5.2018 with Ref. CIP/Firearms/Lab/143 & 298/2018 which was produced as ExP12(a). The Exhibit Memo dated 1.3.2018 was produced as ExP12(b) and the Exhibit Memo dated 3.5.2018 was produced as ExP12(c).
35. PW17, Nicodemus Kipkemboi, a Senior Investigations Officer with IPOA said that on 1.3.2018, he was instructed by the Investigating Officer, the Principal Officer, to escort exhibits from Nyali Police Station to Ballistics Lab in Nairobi. That the exhibits included 3 Ceska firearms and a sealed brown envelope. That he teamed up with PC Rafael Kogo and PC Okaka Michael and at the station they met CPL Kipkorir, the in charge of the armory who gave them 2 firearms, Ceska Pistol Serial Nos F2318 and A050257, and a sealed khaki envelope. That the same was booked vide OB No. 5/1/3/2018. That they proceeded to Ballistics Lab where he learnt the khaki envelope contained 2 blood stained bullets. He produced the khaki envelope as ExP13. That on that day, he learnt that he was supposed to escort 3 firearms to the lab but learnt that one had been picked by DCI officers for another investigation. That the same firearm was being referred with Serial No. A050527. PW17 said that on 3.5.2018, he escorted the 3rd Ceska Pistol in the company of No. 95203 PC Benard King’ori and the firearm he escorted was Ceska Pistol Serial No. 4348.
36. PW18, William Ogolla Ondiek, an Investigation Officer with IPOA at the time said that on 30.8.2016, he was tasked by head of investigations at IPOA to investigate case of alleged fatal shooting of one Tony Katana by police officers from Nyali Police Station Mombasa, and that he was to undertake the investigations together with his colleague Jane Indusia where they proceeded to Mombasa and visited scene of alleged shooting and sketched the scene based on a reconstruction done at the scene. That they also recorded statements of witnesses and collected relevant documents. That they attended postmortem of the deceased which was done on 6.9.2016 at Coast General Hospital Mortuary. That the officer who was tasked to follow up the postmortem was PC Anthony Mwangi of Nyali Police Station.
37. PW18 said that when postmortem was done, 2 bullets were retrieved from the body of the deceased. That the 2 bullets were packaged in 2 plastic containers marked A & B. That they were sealed in a brown envelope and given to PC Mwangi. He identified the brown envelope in court and the 2 bullets as ExP9 & 10. That after the 2 bullets were handed over to PC Mwangi by the pathologist and they proceeded to Nyali Police Station to ascertain who among them was to take the exhibits for forensic analysis. That it was agreed that the 2 bullets be given to Sgt Joseph Nyasimi of Nyali Police Station for safe custody.
38. PW18 further testified that the brown envelope was sealed to ensure integrity and safety of the exhibits with a clear tape. That he signed at the edge of the brown envelope, at the bottom and top indicating his name and telephone number, and that signing was done before sealing. He produced the brown envelope as ExP13. That they drew a sketch map of the scene which shows the distance from where the victim and his friends were stopped. That it also shows where the deceased fell down where he was fatally shot. PW18 produced the sketch map as ExP14.
39. PW19, Jane Indusia, a former Principal Investigations Officer IPOA investigated the fatal shooting of the deceased at Kongowea on 13.8.2016. She obtained OB extract, particulars of the police officers involved, the duty roster, the arms movement register, the scenes of crime report, photographs, and inquest file. PW19 produced the Incident Report in OB No. 03/13/8/16 as ExP17 and newspaper cutting dated 30.8.2016 as ExP15 and letter dated 1.9.2016 to the OCS as ExP16. She said that the investigation was to establish circumstances of the shooting and whether it was justified. She produced extract for OB No. 3 as ExP19 and arms movement book as ExP6. PW19 established that the officers involved were PC Faraj Masood, PC King’ori and Sgt John Otieno. She also established that all the three officers had been issued with Ceska pistols loaded with 15 rounds of ammunition 9mm caliber each. She gave the serial number for the firearm issued to Sgt John Otieno as A050257 and for PC Benard King’ori as Serial No. F2318. She said further that PC King’ori’s pistol was short of 5 rounds of ammunition while Sgt John Otieno and PC Faraj Masood had their ammunitions intact.
40. PW19 testified that they recorded statements of 23 witnesses including the mother of the deceased and the 3 suspect police officers and established that the deceased with a group of friends had gone to attend a wedding in the general area of Uwanja wa Mbuzi and while on their way to sample goodies in another wedding at around midnight, they came across a group of men seated under a mango tree and when they approached the people seated, one of them arose and told them to stop. That the boys who were scared tried to walk back to where they had come from and the men started pursuing them. That as they were running away, they heard sounds of gunshots and the deceased who was behind Edgar Mosoti fell but Edgar hid behind one of the shanties beside the road. That while hiding, Edgar saw one man stand where the deceased had fallen and the man asked “unafanya nini hapa” but there was no response from the deceased. Instead he heard two more gunshots and when he saw two of the men run towards him, he decided to run away. That the following day, Edgar learnt that his friend Katana had been shot dead.
41. PW19 and her colleague William Ondieki attended postmortem examination on the body of the deceased at the Coast General Hospital Mortuary on 6.9.2016 where 2 bullets lodged in the body of the deceased were removed from the thigh and from the neck. The two bullets were produced as ExP9 and ExP10. The two bullets were kept in clear containers by the pathologists for examination and kept by Sgt Nyasimi in the armory at Nyali Police Station. That on 1.3.2018, the brown envelope containing the 2 bullets were escorted for ballistics examination together with 2 pistols Serial numbers F2318 and A050527. He said that the 2 bullet heads and the 2 Ceska pistols were forwarded to Nairobi for Ballistics examination by Nicodemus Kipkemboi and Bernard King’ori. She said that the handing over of the firearms were done on two different occasions on 1.3.2018 and on 3.5.2018 as shown in ExP19 (a) and (b).
42. PW19 said that the ballistics experts said that the Accused Person’s Ceska pistol serial No. A050527 which also bore serial No. KEKP A050257 expended the 2 bullets. He said that from the evidence gathered, he concluded that the shooting to death of the deceased was not justified as the boys were not armed and were not a threat to life or property. She said that the injuries on the deceased person showed that the sole intention was to cause the death of the deceased as he had fallen when the second shot was directed at his face. That although they recommended that all the three police officers be charged, the DPP recommended that only the Accused Person be charged with the offence of murder while the other 2 officers were charged with the offence of accessory after the fact. That they tried to cover up the murder by making false entries in the arms movement register that they had not discharged their firearms.
43. In cross examination, she said that when they were shown the scene of the shooting by Edgar Mosoti, they were not in the company of police officers. She also said that there was no witness who individually said it was the accused person who shot the deceased. She also said that the firearms movement register showed that it is PC Benard King’ori’s ammunition that was less by 5. That she could not tell if Sgt John Otieno fired any rounds during the incident since he is the one who renewed his firearm on 16.8.2016 and did not indicate if he had spent any rounds of ammunition. She also said that the Accused Person was not charged with the offence of giving false information.
44. PW19 further said that their request to ballistics expert was to confirm if the bullet retrieved from the body of the deceased were fired from the Accused Person’s pistol. She was not aware if pangas and bhang were recovered from the scene. She also said that the person who said he saw a person talk to the deceased did not tell her that it was the Accused Person. She confirmed that PC Benard King’ori who was a suspect escorted exhibits to Nairobi on 3.5.2018 and that is the day examination was done and report produced. She said that she was not aware that Benard King’ori was the officer who was identified to escort the exhibits in which he was a suspect. She said that identifying Benard King’ori to escort the exhibits was part of the cover up by the police and that the Accused was not part of the cover up. She said that the initial exhibit was forwarded on 1.3.2018 but it was not until 3.5.2018 that a report was done. She said that she based her decision to charge the Accused on the report by ballistic experts and statements of witnesses. She also said that the Accused Person made entries in the firearms register but his signature was not investigated. She also said that the incident report indicated that there were six young men who were armed with machetes and wanted to attack police officers and that a kitchen knife was recovered in the incident which happened at night.
45. In cross examination by the court, PW19 said they did not establish who were the parties in the weddings that were happening in the neighbourhood where the deceased and his friends had gone. She also said they were shown who the people in the wedding were but they were not willing to record statements.
46. In re- examination, PW19 confirmed that the Arms Movement Register indicated that the Accused Person’s firearm had nil discharge and that the OB indicated that the 6 young men were armed with pangas and machetes and were heading to a wedding ceremony within Uwanja wa Mbuzi and that a panga and machete were recovered from the deceased but the same were not handed to her as exhibits. She said that it is the OCS Nyali who identified the officer to escort the firearms to the Ballistic Expert.
Defence Case
47. The accused gave sworn statement and said that on 12.8.2016, he was attached at Nyali Police Station and that at 11.30 pm, they proceeded on patrol in the company of PC Masoud Faraj and PC King’ori in Karama area. That while on patrol, they received a phone call from 0713633396 and the person introduced himself as Benja who told him that it is the OCS who gave him the number. That the person told him that he was carrying a female pillion passenger in one of the estates in Kambi Kikuyu in Nyali when suddenly 6 to 8 young men appeared from a nearby stall and surrounded them. That the young men started demanding money from the lady and the smart phone that she was carrying. That he gave the caller’s number to PC King’ori as his battery was almost running out. That the caller directed PC King’ori to the scene of the attack and he followed King’ori and Masoud as they were escorting 3 prisoners whom they had arrested.
48. The Accused said that as they were crossing Uwanja wa Mbizi and were about to cross the road to Kongowea Market, King’ori spotted the young men and tried to stop them but instead they produced a panga and directed it at King’ori. That King’ori drew his Ceska pistol from the waist and fired a shot. That the people continued to come closer to King’ori and he was forced to fire several shots. That when the young men realized that these were police officers, they started running away and King’ori followed them. That when they negotiated a corner, it was suddenly realized that King’ori had injured one of them. He said that he did not fire any shot because there were police officers and 3 prisoners ahead of him and his life was not in danger to warrant firing a shot. He said that they were all armed with Ceska pistols. He said that the scene was visited and secured by Sgt Wekesa the duty officer.
49. The Accused said that the shooting incident was booked vide OB No. 3/13/8/2016 at 0125 hours and the 3 prisoners that had been arrested were booked vide OB No. 4/13/8/2016 at 0140 hours. He said that CIP Kiplagat interrogated them on the issue of the shooting incident and PC King’ori confessed that he shot and fatally injured the deceased who was about to cut him with a panga. He said that the OCS checked their firearm and confirmed that PC King’ori had expended 5 rounds of ammunition whereas that of PC Faraj and the Accused had their ammunition intact. He said the OCS returned his firearm as the overall in charge of the armory. He gave 3 circumstances under which one can use a firearm.
50. The Accused Person said that whenever there is an incident where a firearm is involved, the firearm is taken, labelled and entered in the exhibit register together with its component and kept separately from the rest that are being used. He said that he realized that the firearms were used for almost 3 years before being taken for ballistics examination and were escorted by PC King’ori. He said that after this incident, he was redeployed to Marsabit North and he left after the police and IPOA had commenced the investigations. He said that it was only his firearm that was taken for examination and it was PC King’ori who took part in investigations by IPOA. He said that the Ballistics expert report did not explain or show results in relation to PC Benard King’ori’s firearm. He said that PC King’ori who had an interest in the matter escorted the exhibits to Nairobi and on the same day examination was conducted and results produced.
51. In cross examination, the Accused Person said that he was in company of two police constables and he was in charge of the patrol on the night of the shooting incident. He said that they had arrested 3 prisoners prior to the shooting incident and that those prisoners did not run away. He confirmed that he was using Ceska pistol No. A050257 but that he did not fire any shots. He said that he went back to the station and gave out his firearm and all the ammunition that he had been supplied with were accounted for by the OCS.
52. The Accuse Person also said that the 2nd Exhibit Memo Form was also prepared by PC King’ori who also escorted the firearm to the Ballistic Expert. He said that the firearm belonging to PC Faraj was not analysed and he doubted the Ballistic Report as it was only specific to his rifle and failed to analyse and give report on the other 2 rifles. He denied having interfered with investigations and that he had been transferred to Marsabit prior to the shooting incident and he immediately proceeded to the transfer. The Accused person also said that he was never given the responsibility of an armorer at Nyali Police Station and that it was King’ori who pursued the gangsters towards the same direction that they were heading.
53. The Accused Person’s advocate filed written submissions dated 5th March 2024.
Analysis and Determination
54. In consideration of the evidence of 19 prosecution witnesses and in consideration of the Accused Person’s sworn evidence, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.
55. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused person was charged provides as follows: -
‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’
56. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -
i. That the deceased died;
ii. That the death was caused by an unlawful act or omission;
iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and
iv. That there was malice aforethought.
Fact of death, cause of death and whether there was malice aforethought
57. The fact that the deceased TONY KATANA died is not in dispute. The untimely and sad death of the 20-year-old TONY KATANA occurred when he met police officers who were on night patrol at Uwanja wa Mbuzi area in Kongowea Location and he was shot when he and a group of his friends comprised of young men were suspected to have been terrorizing members of the public in the area.
58. From the Postmortem Report prepared by Dr. Mbuko it was concluded that the cause of death was traumatic spinal damage due to bullet injury. An x-ray was conducted on the body of the deceased and a bullet removed from the back of the neck and the 2nd bullet removed from the medial right thigh. There is overwhelming evidence both by the prosecution witness and the Accused that one of the police officers fired the fatal shot that killed the deceased.
59. The shooting of the deceased was not justified considering that the officer had fired the first shot at the deceased’s buttocks and he fell. Shooting him on the face and thereby causing his death amounted to the officer applying excessive force that was not proportional to subdue a suspect who was running away from the scene. It would have been expected of the officer after subduing the suspect to arrest and take him to the hospital for purposes of treatment of the injury caused by the 1st shot and thereafter investigate his suspicion and prefer charges where necessary. This court finds that the 2nd shot at the deceased was actuated with express malice and the person shooting had the sole intention to cause the death of the deceased.
Participation of the accused in the commission of the alleged offence
60. PW2 said he did not identify the person who shot the deceased as it was dark and he hid himself from the people who were pursuing them when the deceased fell. PW3 also said that as they were running away, he heard a gunshot and the deceased fell, and he heard another gunshot. PW4 said he was not able to identify the people who chased them and he did not know the accused. Although he said in reexamination that the assailant was of medium height and big belly who was dressed in checked shirt and a cream trouser, he confirmed that the description of the assailant was not in his statement to the police.
61. PW5, Rtd CIP Joseph Kiplagat Cherutich, was the OCS at Nyali Police Station. It was his evidence that the Accused herein together with PC Benard King’ori and PC Faraj Masoud were on patrol in the area in question when he authorized them to proceed with the operation in Uwanja wa Mbuzi area where young men were spotted terrorizing members of the public. That as a result of the operation, one person was fatally shot and when the officer returned to the station, he confirmed that PC King’ori’s firearm had expended five rounds of ammunition whereas the Accused Person and PC Faraj’s firearm and ammunition were intact and the ammunitions were accounted for. PW5 said he is the one who took over the firearm from the Accused and since it was intact, he renewed it in the Arms Movement Register. PW5 also testified that PC King’ori confessed in his presence and in the presence of the other 2 officers that it is his firearm that had fired the fatal shot. That Sgt Wekesa recovered the firearm from PC King’ori and confirmed that 5 rounds of ammunition were missing.
62. PW6, IP Wekesa also confirmed that 5 rounds of ammunition were expended form PC King’ori’s firearm and he was of the opinion that they were the ones which were used at the shootout at Uwanja wa Mbuzi although no spent cartridges were recovered.
63. According to PW11, IP Nyasimi, he did not find evidence connecting the Accused to the murder because the shooting happened at night and it could not be established from whose firearm the bullet was fired.
64. From the Exhibit Memo Forms dated 1.3.2018, Nicodemus Kemboi, PW18 and PC Raphael Kogo escorted 2 Ceska pistols serial numbers F2318 that had been issued to PC Benard King’ori and Serial No. A050257 that had been issued to the Accused on the material night of the shooting incident. They also had with them Exhibit A & B being fired bullet heads that had been recovered from the body of the deceased during postmortem and they required the Ballistics Experts to ascertain whether Exhibits marked A & B were fired from Exhibits marked E1 & E2 being the Ceska pistols above.
65. By a further Exhibit Memo Form dated 3.5.2018, a 3rd Ceska pistol Serial No. F4348 was again forwarded to the Ballistics Expert with a request that it should be ascertained whether Exhibits marked A & B were fired from Exhibits E1, E2 & E3 which had been submitted to the lab by reference LAB 143/2018. The 3rd Ceska Pistol was escorted to the Ballistics Expert by PW18, Nicodemus Kipkemboi, and PC Benard King’ori.
66. PW16, SP Alex Ndindi Mwandawiro, testified that when he did comparative microscopic examination of Exhibit A & B, the bullet heads recovered from the body of the deceased in conjunction with the 9 test bullets fired in the firearms that were issued to the Accused Serial No. A050527, PC Benard King’ori Serial No. F2318 and PC Faraj Masoud F4348, it was revealed that there was sufficient matching land engraved areas (LEAS) to enable him form the opinion that the two fired bullets were fired in pistol Serial No. A050527 he established that there were fired from one gun and his observation was that they were fired from the firearm serial number KP A050257.
67. From the report of the Ballistics Expert, Exhibit A, one of the fired bullets, on physical examination revealed that it is slightly deformed and it bears 6 land engraved areas with a right hand twist. The finding on the 2nd fired bullet, Exhibit B is that it is damaged on its nasal area and it is bearing 5 land engraved areas out of a possible 6. PW16 did not explain how the deformity on Exhibit A came about or how the damage of Exhibit B on its nasal area was occasioned and how the deformity and/or damage on the respective fired bullets were related to Ceska Pistol Serial No. A050257 which was submitted to him by Nicodemus Kipkemboi and PC Raphael Kogo and which is the pistol that is indicated in the Arms Movement Book as having been issued to the Accused Person.
68. In the Ballistics Expert’s Report, the pistol that was examined is indicated as A050527 but the one submitted for examination and indicated in the Arms Register Book is A050257. The explanation by PW16 as to how inscriptions are done on firearms and why he chose to use different description from that in the Exhibit Memo Form was not satisfactory.
69. Although 3 Ceska Pistols were submitted for examination, specific detailed examination results for each of the pistols has not been included in the report to show how many land engraved areas the test fired bullets from the other two Ceska pistols bore and their comparative analysis with Exhibits A & B, the fired bullets. This would have made the court understand how he arrived at the conclusion that the fired bullets were indeed fired from one firearm and not the others.
70. PW19 relied on the finding of the Ballistics Expert to conclude that the Accused Person’s Ceska pistol Serial No. A050527 also bearing Serial No. KEKP A050257 expended the two bullets that caused the death of the deceased to charge the Accused Person herein. She acknowledged that there was no one who identified the Accused as the one who shot the deceased and she could not tell if the Accused fired any rounds during the incident. She confirmed that in the Firearms movement register, it is recorded that it is PC Benard King’ori who had his ammunition less by 5. She accused the police of conspiracy to cover up by sending PC Benard King’ori to escort an exhibit for analysis in a case where he was a suspect. She also confirmed that the Accused was not part of the cover-up by the police. She further confirmed that on the date that PC Benard King’ori escorted the exhibits to Nairobi on 3.5.2018 is the date that the Ballistic Expert wrote his report.
71. PC Benard King’ori and PC Faraj Masoud who were in the company of the Accused person on patrol on the material night of the shooting incident and who were instructed by PW5, Rtd CIP Joseph Kiplagat Cherutich to record statements to show cause why the shooting took place were not called as witnesses by the Investigating Officer and the evidence that it is PC King’ori who expended 5 rounds of ammunition during the shooting incident was therefore not refuted. PW5 testified that when the officers returned to the station and PC King’ori confessed that he fired the fatal shot, he instructed Sgt Wekesa, now IP Wekesa, to take over the firearm from PC King’ori and it was confirmed that indeed the ammunition that were issued to him were less by 5.
72. The opinion by the Ballistics Expert that it is the Accused Person’s firearm that shot the 2 fatal bullets is contradictory to the overwhelming evidence that he was not identified physically as the assailant as it was at night and that it is his companion PC Benard King’ori whose Ceska pistol fired the fatal shot. PW5 and PW6 also confirmed that the Accused Person’s firearm and ammunition were intact and PW5 took the Accused Person’s firearm and returned it to the armory.
73. As noted by PW19, it was suspicious that PC Benard King’ori who was a suspect in the shooting incident could be identified to escort exhibits in a matter in which he was involved was suspicious and compromised the integrity of the investigations, and report by the Ballistics Expert. PW17, Nicodemus Kipkemboi a Senior Investigations Officer with IPOA accompanied PC Benard King’ori on 3.5.2018 to escort Ceska pistol Serial No. 4348 when he ought to have known that the officer was among the three who were on patrol at the time that the shooting occurred and it was clearly indicated in the occurrence book and in the Arms Register that out of the 15 rounds of ammunition that were issued to him, 5 were missing.
74. In conclusion, this court finds that the evidence adduced by the prosecution does not point to the Accused Person as the one who fired the fatal shot at the deceased and therefore this court finds that he is not liable to be convicted based on evidence which clearly shows that another person fired the fatal shot. He is therefore acquitted.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 7th day of June 2024
Mr. Omwenga Advocate: I pray for a copy of the judgment and proceedings.
Order: Certified copies of proceedings and judgment to be supplied to defence & prosecution.
1. The accused SGT JOHN OTIENO faces a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code.
2. Particulars of the offence are that SGT JOHN OTIENO on the 13th day of August 2016 at Uwanja wa Mbuzi area within Kongowea Location within Mombasa County murdered TONY KATANA.
3. The prosecution called 19 witnesses to support its case that the accused person committed the offence herein and he was placed on his defence.
Prosecution Case
4. PW1, Ruth Syombua, testified that on 12th August 2016 at 9.00 pm, her son Tony Katana the deceased herein asked for permission to attend a wedding in the neighbourhood in the company of Edgar, Saddam and Alex. That by midnight when she went to sleep, the deceased had not come back. The following day on 13th June 2016 when she woke up and found the deceased had not come back, she went to his friends and asked where he was but the deceased person’s friends also asked whether the deceased had returned home. PW1 said she continued searching for her son until 12.00 noon when she stopped the search but at 3.00 pm, her other son Henry went and told her to go and talk to Edgar. That when she talked to Edgar, he told her that when they left the wedding to go home as they were crossing Uwanja wa Mbuzi, they saw a group of people seated in darkness. That when those people told them to stop. They feared and started running away. That Tony fell and they heard gunshots. She said that Edgar told her that when Tony fell, they continued running as they heard gunshots.
5. PW1 visited the police station to confirm if there was a report concerning her son but there was none. That she proceeded to where the wedding was in Karama and some elders showed her the scene where a young man had been shot and killed. That she proceeded to Coast General Hospital where she identified the body of her son in the mortuary. On 14th August 2016, she went to Nyali Police Station but her report was not booked until 29th August 2016. PW1 said she identified the body for purposes of postmortem.
6. In cross examination, PW1 said she did not know the name of the bride and groom who were wedding at Karama area and she did not know what happened at Uwanja wa Mbuzi as she was at home. She said that Saddam and Edgar also did not know who shot the deceased and she also did not know who killed the deceased.
7. PW2, Edgar Mokua Mosoti, 20 years old resident of Bamburi Estate testified that on 12.8.2016 at 6.00 pm, he went to a wedding in Kongowea in the company of Tony, Alex, Saddam and Felix among others whose names he could not remember. He said they stayed at the wedding until the ceremony ended in the morning before they left. He also said that they left when they were bored to go to another wedding across Uwanja wa Mbuzi.
8. PW2 testified further that on their way, they found people at the field under a tree. Some of the people were seated others were standing. He said it was dark but he could see images of people. He also said that there was floodlight mounted in the area. He said that the people who were under the mango tree ordered them to go where they were and before they could go, one person started approaching them and in fear, they ran away. That when they started running, they heard gunshots. He said that he and the deceased had remained behind and when he saw the deceased fall, he ran and hid. That the person who was running after them caught up with Tony and asked what they were doing. That Tony told him he was a student and that he had come from a wedding. That this was followed by gunshots and everything went quiet.
9. PW2 said that Tony fell about 7 meters from where he was hiding but he did not see who shot Tony. He said that when he confirmed it was quiet, he went back to the wedding and found his companions but Tony was not there. That they remained in the wedding until in the morning but he did not tell anyone what had happened as he was in shock. The following day he reported to Tony’s mother and she started searching for him and found Tony was dead. PW2 said they did not carry anything when going to the wedding.
10. In cross examination, PW2 said he did not know the groom and bride of the wedding that they attended. He said that they did not count the people that they saw under the mango tree and he did not see who shot at them as he was running. He said that it is him and Tony who were older of the boys who accompanied them. He said that he was seeing the Accused for the first time.
11. PW3, Saddam Ibrahim, testified that he was 10 years old in 2016 and that on 12th August 2016 at 9.00 pm, he was with his friends, among them Edgar, Alex, Elvis, and Tony when they decided to go to a wedding. But when they got in the middle of the field, someone who was under a tree with about 4 others ordered them to stop. That the people were in civilian clothes and when they were ordered to stop, they started running. While running, he heard gunshots and on looking back he saw Tony had fallen. That when he continued running, he heard another gunshot and he went and reported to his parents what had happened. He later learnt that Tony had died out of gunshot wounds. He said in cross- examination that he did not know that the people who stopped them were the police.
12. PW4, Alex Nyanega Mosoti, 20 years old said that on 12th August 2016 at around 8.00 pm, there was a wedding behind the mosque and they went to the first wedding where they were dancing and at midnight they decided to go to the 2nd wedding. He said he was with his brother Edgar, Alex, Saddam, Buku, and others. He said they were many and on their way they came across people in civilian clothes seated under a mango tree and one of them stood and ordered them to go to where they were. That because it was at night and they did not know who the people were, they started running away. That before they could cross the road, they heard gunshots and Tony who was ahead of him fell. That he ran past Tony and went back to the wedding place. That the boys who were in his group arrived at the wedding through their own way but Tony and Felix were missing. That they remained at the wedding until the next morning and when they met Felix, he told them that he hid in a trench and that Tony had been killed. PW4 said he was not able to identify the people who chased them and the Accused Person was not known to him.
13. In cross examination, PW4 said he did not know the brides in the two wedding and he only knew one groom in the two weddings. He also said that he did not know the exact time when they decided to go to the 2nd wedding as he did not have a watch. He said he did not know if it was the police who shot Tony because the people under the tree were in civilian clothes. In re-examination, he said that he was able to identify the assailant as the Accused Person who was of medium height and big belly who was dressed in checked shirt and a cream trouser. On being cross examined on new issues raised in re-examination, he said that in his statement, he did not say he identified the assailant, how the assailant was dressed or even his physique.
14. PW5, Rtd CIP Joseph Kiplagat Cherutich, testified that on 13th August 2016, he was the OCS, Nyali Police Station when the Accused Person herein together with PC King’ori and PC Faraji were deployed at the crime office. That they were deployed to patrol under cover as there was an outcry that there were young men armed with machetes and knives that were terrorizing members of the public within Kongowea area. He testified that PC King’ori called and informed him that there were young boys spotted around Uwanja wa Mbuzi around Kongowea area who were terrorizing members of the public. That he authorized them to proceed with the operation in the area.
15. PW5 testified that within 3 minutes, he received another call from PC King’ori that one person had been fatally shot. That he instructed PC King’ori and the other officers on patrol to remain at the scene until the duty Officer Sgt Wekesa arrived. That on arrival Sgt Wekesa reported to him that he found the dead body of a boy between 14 and 16 years and also recovered a machete and a knife. That when the concerned officers went back to the station, he told Sgt Aduol to write the report himself.
16. PW5 wrote signals to inform the DCI HQs, Regional HQs, County and Sub-County HQs of what had happened. That when he interrogated the police officers, PC King’ori said he is the one who fired the fatal shot. That he instructed the officers to record a statement to show cause why the shooting took place and assigned Sgt Nyasini to compile an inquest file. Inquest File No. 48 of 2016 was opened and Sgt. Wekesa recovered a gun from PC King’ori which had 5 rounds of ammunition missing. PW5 said he personally returned the Accused Person’s gun to the armory and renewed it as it was intact with 15 rounds of ammunition which had been issued to him. He said that he was also not informed if PC Faraji expended any ammunitions.
17. PW5 said Independent Police Oversight Authority (IPOA) took over investigations and he handed over to them the Occurrence Book and PC King’ori wrote what happened in OB for 12th and 13th August 2016 – ExP1(a) and (b). He also produced the Duty Roster – ExP2(a), (b) and (c).
18. PW5 in cross examination said that the three firearms that were issued to the 3 officers were never taken for examination as the Investigating Officer did not go for them. He also said Sgt Wekesa recovered a knife and a machete from the deceased but he did not see them.
19. PW6, IP Timothy Wekesa, testified that on 12.8.2016, he was working at Nyali Police Station and he was in charge of all patrols within the Police Station Area. That in company of PC Njoka, PC Ngali and PC Alex Murithi, they patrolled throughout the day until on 13.8.2016 at about 1.00 am while they were within Leisure in Kisauni, the OCS Nyali called and informed him that there was a shooting incident in Kongowea, Karama area Uwanja wa Mbuzi. On proceeding to the scene, he found Sgt John Otieno the Accused, PC King’ori and PC Faraji who were in civilian and were on patrol in the area. He said the scene was on a corridor in the slums, far from the road. They found the body of the deceased and found PC King’ori holding a panga alleged to have been recovered from the deceased. He said that the body had 2 bullets on the buttocks and one on the face. He said that he searched the body and recovered a knife hidden inside the trouser on the left side of the waist.
20. PW6 also said that the Accused was issued with a firearm by Sgt Joseph Lepiri by instructions of the OCS on 12.8.2016 and on return on 16.8.2016, it had all the ammunition. He said that PC Faraj Masoud was also issued with a firearm by Sgt Lepiri and it was returned on 18.8.2016 and no single shot was fired from it. That the 3rd firearm was issued to PC Benard King’ori on 12.8.2016 but when he checked the firearm on 16.8.2016, 5 rounds of ammunition were missing and it appeared that the 5 rounds were used. The firearms register for the period 1.9.2014 to 3.8.2018 was produced as ExP6. He said that the machete and knife were handed over to Sgt Joseph Nyasini who was investigating the incident.
21. In cross examination, PW6 said that the scene of crime was very dark and it was not possible to identify anyone as there was no light. He said that when he found PC King’ori’s firearm had 5 rounds of ammunition missing, he was of the opinion that they were used at the shoot-out at Uwanja wa Mbuzi although he did not recover any used cartridges. He said the firearms were not taken immediately from the police officers until much later and he did not know if they were preserved. He said PC King’ori handed over to him the panga that was recovered from the scene.
22. PW7, Sgt Stephen Nyamai, Scenes of Crime Officer took photographs of the body of the deceased at the Coast General Hospital Mortuary on instructions of Sgt Wekesa of Nyali Police Station. He produced the photographs as ExP7(a) – (f) and Certificate as ExP8.
23. PW8, Cpl Anthony Mwangi, attended to the postmortem examinations on 24.8.2016 and 6.9.2016 where Dr. Mbuko on examination on the later date removed one bullet head from the neck of the deceased and the other from the thigh of the deceased. The 2 bullet head were packed and sealed in 2 clear containers and handed over to the Deputy OCS David Lang’at as the Investigating Officer Sgt Nyasimi was not at the station.
24. PW9, Cpl Leonard Korir testified that on 1.3.2018, he was standing in for the in charge armory at Nyali Police Station when the OCS instructed him to prepare and hand over 2 firearms namely Ceska Serial Nos. F2318 and A050527 to PC Raphael Kogo who was in the company of IPOA staff Nicodemus Kipkemboi. That PC Kogo then proceeded to the dog section Kisauni to be accompanied by PC Okaka. He identified the Ceska Pistol Serial No. F2318 as ExP4. He said that the 2nd firearm Ceska Serial No. A050527 was also branded as KPA050527. In cross examination, he said the 2nd firearm also bears the branded number of Kenya Police and that is the one that he handed over to PC Kogo.
25. PW10, Cpl Michael Okaka testified that on 1.3.2018, he was instructed to accompany Cpl Kogo to Nairobi and escort two rifled to CID Headquarters. He said the rifles were picked from Nyali Police Station and that in Nairobi the rifles were handed to the ballistics. He said in cross examination that the rifles were serial numbers F2318 and A050257.
26. PW11, Inspector Joseph Nyasimi testified that on 13.8.2016 when he reported on duty and perused the OB, he found that there was a shooting incident that had occurred the previous night and the same was minuted to him for investigations. That he opened Inquest File No. 48 of 2016 in which the deceased was Tony Katana. That he recorded the statement of the mother of the deceased and detailed PC Anthony Mwangi to attend to the postmortem where 2 bullet heads were removed from the body of the deceased. He said the 2 bullet heads were sealed in an envelope with transparent envelope and later taken to the Ballistics Expert for examination. PW11 also caused the officers involved to record statements. He said that the recommendation of the DPP was that the file be closed pending any evidence coming up. He said he did not find any evidence connecting the Accused to the offence of murder as it could not be established from whose firearm the bullet was fired as it was at night.
27. PW12, Dr. Abdul Aziz Mohamed produced the Postmortem Report prepared by Dr. Mbuko on 24.8.2016 in which it was concluded that the cause of death was traumatic spinal damage due to bullet injury. On 16.9.2016, an x-ray of the body was done and a bullet was removed on the back of the neck and the 2nd bullet was removed from the medial right thigh. The Post Mortem Report is ExP11.
28. PW13, Sgt Paul Lepire, said that on 12.8.2016, he was at Nyali Police Station when he renewed possession of firearms to 3 officers namely Sgt John Aduol – Ceska Serial No. A050253 with 15 rounds of ammunition, PC Faraj Masud – Ceska Serial No. F4348 with 15 rounds of ammunition and PC Benard King’ori – Ceska Serial No. F2318 with 15 rounds of ammunition. PW13 said that they were going for patrol duties and that he later handed over the armory to Sgt Timothy Wekesa who was the in charge armory. PW13 identified the three firearms in court and produced the Arms Movement Register as ExP6.
29. PW14, No. 235989 IP Joseph Langat said that on 6.9.2016, he was at Nyali Police Station as Deputy OCS and at around 10.00 am, PC Anthony Mwangi went to his office from Coast General Hospital after attending a postmortem of a person who had been shot dead. That PC Anthony Mwangi was carrying 2 clear containers with bullet heads and that he was in the company of police officers from IPOA, human rights activists and members of the press. That with instructions from his boss, PW14 handed over the exhibits to IP Christopher Kenga who together with police officers from IPOA, human rights activists and members of the press proceeded to Kisauni Sub-County Headquarters.
30. PW15, No. 49496 CPL Raphael Kipruto Kogo testified that on 1.3.2018, he was at Kisauni Regional Headquarters and had been assigned duties to collect pistols from Nyali Police Station and he took them to DCI Nairobi Ballistics Laboratory Serial Numbers F2318 and A050257. That the two pistols were wrapped in a khaki envelope and the IPOA officers who accompanied him to Nairobi from Nyali were Nicodemus Kipkemboi and Fauzi Mwalimu. That they arrived in Nairobi at 2.00 pm and handed over the pistols to the Ballistics Expert who signed for it and they returned to Mombasa.
31. PW16, No. 231165 SP Alex Ndindi Mwandawiro attached to Forensic Ballistics DCI Laboratory as Firearms Examiner said that on 1.3.2018, their lab received some exhibits from No. 0131 Nicodemus Kipkemboi of IPOA and No. 49496 PC Rafael Kogo. That the 1st exhibit was E1 Pistol Serial No. F2318, the 2nd Exhibit E2 Pistol Serial No. A050527 and two fired bullets marked A & B. That subsequently on 3.5.2018, the lab received one exhibit from IPOA Officer No. 0131 Nicodemus Kipkemboi and No. 95203 PC Bernard King’ori and the exhibit was marked E3was a pistol Serial No. F4348.
32. PW16 said he examined the exhibits E1, E2 & E3. That on physical examination of Exhibit E2, with police markings KP050257. That the officer assigned to put inscriptions interchanged some numbers because of how markings are done. That the officer who inscribed interchanged the numbers to KPA050257 when it should have been KP0520527. PW16 said he test fired the three firearms using 9 rounds of ammunition which were from the stock in the lab. That he recovered the test cartridge case and bullets for purposes of comparative analysis. PW16 said that from the examination, he formed the opinion that E1, E2 and E3 were firearms as per the Firearms Act.
33. PW16 testified that he examined the fired bullets. Exhibit A – caliber 9 mm which revealed that the bullet was slightly deformed and had 6 land and engraving areas with a right hand twist meaning the bullet would spin clockwise as it goes from the gun to the target. PW16 said that he also examined exhibit B – the fired bullet caliber 9mm and he observed that it was damaged at its nozzle area. That it had 5 land and engraved areas out of a possible 6 which means that were it not for deformity on the nozzle area, there would be 6 lend and engraved areas. That both Exhibits A & B had some blood-like stains on their surfaces and when he compared the 2 bullets, he found they were fired from one gun. That he went further to compare A & B in conjunction with the 9 test bullets fired in E1, E2 & E3.
34. PW16 said that his observation revealed that A & B were fired in exhibit E2 and the basis of his findings was because he would find markings on A & B which were also repeated in the test bullets fired in E2. That even if there were 2 firearms of the same make and caliber following the same manufacturing process, the markings they would leave on bullets would not be the same. That each firearm has its unique individual characteristics which forms the basis of forensic ballistics. PW16 said that he prepared a report dated 3.5.2018 with Ref. CIP/Firearms/Lab/143 & 298/2018 which was produced as ExP12(a). The Exhibit Memo dated 1.3.2018 was produced as ExP12(b) and the Exhibit Memo dated 3.5.2018 was produced as ExP12(c).
35. PW17, Nicodemus Kipkemboi, a Senior Investigations Officer with IPOA said that on 1.3.2018, he was instructed by the Investigating Officer, the Principal Officer, to escort exhibits from Nyali Police Station to Ballistics Lab in Nairobi. That the exhibits included 3 Ceska firearms and a sealed brown envelope. That he teamed up with PC Rafael Kogo and PC Okaka Michael and at the station they met CPL Kipkorir, the in charge of the armory who gave them 2 firearms, Ceska Pistol Serial Nos F2318 and A050257, and a sealed khaki envelope. That the same was booked vide OB No. 5/1/3/2018. That they proceeded to Ballistics Lab where he learnt the khaki envelope contained 2 blood stained bullets. He produced the khaki envelope as ExP13. That on that day, he learnt that he was supposed to escort 3 firearms to the lab but learnt that one had been picked by DCI officers for another investigation. That the same firearm was being referred with Serial No. A050527. PW17 said that on 3.5.2018, he escorted the 3rd Ceska Pistol in the company of No. 95203 PC Benard King’ori and the firearm he escorted was Ceska Pistol Serial No. 4348.
36. PW18, William Ogolla Ondiek, an Investigation Officer with IPOA at the time said that on 30.8.2016, he was tasked by head of investigations at IPOA to investigate case of alleged fatal shooting of one Tony Katana by police officers from Nyali Police Station Mombasa, and that he was to undertake the investigations together with his colleague Jane Indusia where they proceeded to Mombasa and visited scene of alleged shooting and sketched the scene based on a reconstruction done at the scene. That they also recorded statements of witnesses and collected relevant documents. That they attended postmortem of the deceased which was done on 6.9.2016 at Coast General Hospital Mortuary. That the officer who was tasked to follow up the postmortem was PC Anthony Mwangi of Nyali Police Station.
37. PW18 said that when postmortem was done, 2 bullets were retrieved from the body of the deceased. That the 2 bullets were packaged in 2 plastic containers marked A & B. That they were sealed in a brown envelope and given to PC Mwangi. He identified the brown envelope in court and the 2 bullets as ExP9 & 10. That after the 2 bullets were handed over to PC Mwangi by the pathologist and they proceeded to Nyali Police Station to ascertain who among them was to take the exhibits for forensic analysis. That it was agreed that the 2 bullets be given to Sgt Joseph Nyasimi of Nyali Police Station for safe custody.
38. PW18 further testified that the brown envelope was sealed to ensure integrity and safety of the exhibits with a clear tape. That he signed at the edge of the brown envelope, at the bottom and top indicating his name and telephone number, and that signing was done before sealing. He produced the brown envelope as ExP13. That they drew a sketch map of the scene which shows the distance from where the victim and his friends were stopped. That it also shows where the deceased fell down where he was fatally shot. PW18 produced the sketch map as ExP14.
39. PW19, Jane Indusia, a former Principal Investigations Officer IPOA investigated the fatal shooting of the deceased at Kongowea on 13.8.2016. She obtained OB extract, particulars of the police officers involved, the duty roster, the arms movement register, the scenes of crime report, photographs, and inquest file. PW19 produced the Incident Report in OB No. 03/13/8/16 as ExP17 and newspaper cutting dated 30.8.2016 as ExP15 and letter dated 1.9.2016 to the OCS as ExP16. She said that the investigation was to establish circumstances of the shooting and whether it was justified. She produced extract for OB No. 3 as ExP19 and arms movement book as ExP6. PW19 established that the officers involved were PC Faraj Masood, PC King’ori and Sgt John Otieno. She also established that all the three officers had been issued with Ceska pistols loaded with 15 rounds of ammunition 9mm caliber each. She gave the serial number for the firearm issued to Sgt John Otieno as A050257 and for PC Benard King’ori as Serial No. F2318. She said further that PC King’ori’s pistol was short of 5 rounds of ammunition while Sgt John Otieno and PC Faraj Masood had their ammunitions intact.
40. PW19 testified that they recorded statements of 23 witnesses including the mother of the deceased and the 3 suspect police officers and established that the deceased with a group of friends had gone to attend a wedding in the general area of Uwanja wa Mbuzi and while on their way to sample goodies in another wedding at around midnight, they came across a group of men seated under a mango tree and when they approached the people seated, one of them arose and told them to stop. That the boys who were scared tried to walk back to where they had come from and the men started pursuing them. That as they were running away, they heard sounds of gunshots and the deceased who was behind Edgar Mosoti fell but Edgar hid behind one of the shanties beside the road. That while hiding, Edgar saw one man stand where the deceased had fallen and the man asked “unafanya nini hapa” but there was no response from the deceased. Instead he heard two more gunshots and when he saw two of the men run towards him, he decided to run away. That the following day, Edgar learnt that his friend Katana had been shot dead.
41. PW19 and her colleague William Ondieki attended postmortem examination on the body of the deceased at the Coast General Hospital Mortuary on 6.9.2016 where 2 bullets lodged in the body of the deceased were removed from the thigh and from the neck. The two bullets were produced as ExP9 and ExP10. The two bullets were kept in clear containers by the pathologists for examination and kept by Sgt Nyasimi in the armory at Nyali Police Station. That on 1.3.2018, the brown envelope containing the 2 bullets were escorted for ballistics examination together with 2 pistols Serial numbers F2318 and A050527. He said that the 2 bullet heads and the 2 Ceska pistols were forwarded to Nairobi for Ballistics examination by Nicodemus Kipkemboi and Bernard King’ori. She said that the handing over of the firearms were done on two different occasions on 1.3.2018 and on 3.5.2018 as shown in ExP19 (a) and (b).
42. PW19 said that the ballistics experts said that the Accused Person’s Ceska pistol serial No. A050527 which also bore serial No. KEKP A050257 expended the 2 bullets. He said that from the evidence gathered, he concluded that the shooting to death of the deceased was not justified as the boys were not armed and were not a threat to life or property. She said that the injuries on the deceased person showed that the sole intention was to cause the death of the deceased as he had fallen when the second shot was directed at his face. That although they recommended that all the three police officers be charged, the DPP recommended that only the Accused Person be charged with the offence of murder while the other 2 officers were charged with the offence of accessory after the fact. That they tried to cover up the murder by making false entries in the arms movement register that they had not discharged their firearms.
43. In cross examination, she said that when they were shown the scene of the shooting by Edgar Mosoti, they were not in the company of police officers. She also said that there was no witness who individually said it was the accused person who shot the deceased. She also said that the firearms movement register showed that it is PC Benard King’ori’s ammunition that was less by 5. That she could not tell if Sgt John Otieno fired any rounds during the incident since he is the one who renewed his firearm on 16.8.2016 and did not indicate if he had spent any rounds of ammunition. She also said that the Accused Person was not charged with the offence of giving false information.
44. PW19 further said that their request to ballistics expert was to confirm if the bullet retrieved from the body of the deceased were fired from the Accused Person’s pistol. She was not aware if pangas and bhang were recovered from the scene. She also said that the person who said he saw a person talk to the deceased did not tell her that it was the Accused Person. She confirmed that PC Benard King’ori who was a suspect escorted exhibits to Nairobi on 3.5.2018 and that is the day examination was done and report produced. She said that she was not aware that Benard King’ori was the officer who was identified to escort the exhibits in which he was a suspect. She said that identifying Benard King’ori to escort the exhibits was part of the cover up by the police and that the Accused was not part of the cover up. She said that the initial exhibit was forwarded on 1.3.2018 but it was not until 3.5.2018 that a report was done. She said that she based her decision to charge the Accused on the report by ballistic experts and statements of witnesses. She also said that the Accused Person made entries in the firearms register but his signature was not investigated. She also said that the incident report indicated that there were six young men who were armed with machetes and wanted to attack police officers and that a kitchen knife was recovered in the incident which happened at night.
45. In cross examination by the court, PW19 said they did not establish who were the parties in the weddings that were happening in the neighbourhood where the deceased and his friends had gone. She also said they were shown who the people in the wedding were but they were not willing to record statements.
46. In re- examination, PW19 confirmed that the Arms Movement Register indicated that the Accused Person’s firearm had nil discharge and that the OB indicated that the 6 young men were armed with pangas and machetes and were heading to a wedding ceremony within Uwanja wa Mbuzi and that a panga and machete were recovered from the deceased but the same were not handed to her as exhibits. She said that it is the OCS Nyali who identified the officer to escort the firearms to the Ballistic Expert.
Defence Case
47. The accused gave sworn statement and said that on 12.8.2016, he was attached at Nyali Police Station and that at 11.30 pm, they proceeded on patrol in the company of PC Masoud Faraj and PC King’ori in Karama area. That while on patrol, they received a phone call from 0713633396 and the person introduced himself as Benja who told him that it is the OCS who gave him the number. That the person told him that he was carrying a female pillion passenger in one of the estates in Kambi Kikuyu in Nyali when suddenly 6 to 8 young men appeared from a nearby stall and surrounded them. That the young men started demanding money from the lady and the smart phone that she was carrying. That he gave the caller’s number to PC King’ori as his battery was almost running out. That the caller directed PC King’ori to the scene of the attack and he followed King’ori and Masoud as they were escorting 3 prisoners whom they had arrested.
48. The Accused said that as they were crossing Uwanja wa Mbizi and were about to cross the road to Kongowea Market, King’ori spotted the young men and tried to stop them but instead they produced a panga and directed it at King’ori. That King’ori drew his Ceska pistol from the waist and fired a shot. That the people continued to come closer to King’ori and he was forced to fire several shots. That when the young men realized that these were police officers, they started running away and King’ori followed them. That when they negotiated a corner, it was suddenly realized that King’ori had injured one of them. He said that he did not fire any shot because there were police officers and 3 prisoners ahead of him and his life was not in danger to warrant firing a shot. He said that they were all armed with Ceska pistols. He said that the scene was visited and secured by Sgt Wekesa the duty officer.
49. The Accused said that the shooting incident was booked vide OB No. 3/13/8/2016 at 0125 hours and the 3 prisoners that had been arrested were booked vide OB No. 4/13/8/2016 at 0140 hours. He said that CIP Kiplagat interrogated them on the issue of the shooting incident and PC King’ori confessed that he shot and fatally injured the deceased who was about to cut him with a panga. He said that the OCS checked their firearm and confirmed that PC King’ori had expended 5 rounds of ammunition whereas that of PC Faraj and the Accused had their ammunition intact. He said the OCS returned his firearm as the overall in charge of the armory. He gave 3 circumstances under which one can use a firearm.
50. The Accused Person said that whenever there is an incident where a firearm is involved, the firearm is taken, labelled and entered in the exhibit register together with its component and kept separately from the rest that are being used. He said that he realized that the firearms were used for almost 3 years before being taken for ballistics examination and were escorted by PC King’ori. He said that after this incident, he was redeployed to Marsabit North and he left after the police and IPOA had commenced the investigations. He said that it was only his firearm that was taken for examination and it was PC King’ori who took part in investigations by IPOA. He said that the Ballistics expert report did not explain or show results in relation to PC Benard King’ori’s firearm. He said that PC King’ori who had an interest in the matter escorted the exhibits to Nairobi and on the same day examination was conducted and results produced.
51. In cross examination, the Accused Person said that he was in company of two police constables and he was in charge of the patrol on the night of the shooting incident. He said that they had arrested 3 prisoners prior to the shooting incident and that those prisoners did not run away. He confirmed that he was using Ceska pistol No. A050257 but that he did not fire any shots. He said that he went back to the station and gave out his firearm and all the ammunition that he had been supplied with were accounted for by the OCS.
52. The Accuse Person also said that the 2nd Exhibit Memo Form was also prepared by PC King’ori who also escorted the firearm to the Ballistic Expert. He said that the firearm belonging to PC Faraj was not analysed and he doubted the Ballistic Report as it was only specific to his rifle and failed to analyse and give report on the other 2 rifles. He denied having interfered with investigations and that he had been transferred to Marsabit prior to the shooting incident and he immediately proceeded to the transfer. The Accused person also said that he was never given the responsibility of an armorer at Nyali Police Station and that it was King’ori who pursued the gangsters towards the same direction that they were heading.
53. The Accused Person’s advocate filed written submissions dated 5th March 2024.
Analysis and Determination
54. In consideration of the evidence of 19 prosecution witnesses and in consideration of the Accused Person’s sworn evidence, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.
55. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused person was charged provides as follows: -
‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’
56. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -
i. That the deceased died;
ii. That the death was caused by an unlawful act or omission;
iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and
iv. That there was malice aforethought.
Fact of death, cause of death and whether there was malice aforethought
57. The fact that the deceased TONY KATANA died is not in dispute. The untimely and sad death of the 20-year-old TONY KATANA occurred when he met police officers who were on night patrol at Uwanja wa Mbuzi area in Kongowea Location and he was shot when he and a group of his friends comprised of young men were suspected to have been terrorizing members of the public in the area.
58. From the Postmortem Report prepared by Dr. Mbuko it was concluded that the cause of death was traumatic spinal damage due to bullet injury. An x-ray was conducted on the body of the deceased and a bullet removed from the back of the neck and the 2nd bullet removed from the medial right thigh. There is overwhelming evidence both by the prosecution witness and the Accused that one of the police officers fired the fatal shot that killed the deceased.
59. The shooting of the deceased was not justified considering that the officer had fired the first shot at the deceased’s buttocks and he fell. Shooting him on the face and thereby causing his death amounted to the officer applying excessive force that was not proportional to subdue a suspect who was running away from the scene. It would have been expected of the officer after subduing the suspect to arrest and take him to the hospital for purposes of treatment of the injury caused by the 1st shot and thereafter investigate his suspicion and prefer charges where necessary. This court finds that the 2nd shot at the deceased was actuated with express malice and the person shooting had the sole intention to cause the death of the deceased.
Participation of the accused in the commission of the alleged offence
60. PW2 said he did not identify the person who shot the deceased as it was dark and he hid himself from the people who were pursuing them when the deceased fell. PW3 also said that as they were running away, he heard a gunshot and the deceased fell, and he heard another gunshot. PW4 said he was not able to identify the people who chased them and he did not know the accused. Although he said in reexamination that the assailant was of medium height and big belly who was dressed in checked shirt and a cream trouser, he confirmed that the description of the assailant was not in his statement to the police.
61. PW5, Rtd CIP Joseph Kiplagat Cherutich, was the OCS at Nyali Police Station. It was his evidence that the Accused herein together with PC Benard King’ori and PC Faraj Masoud were on patrol in the area in question when he authorized them to proceed with the operation in Uwanja wa Mbuzi area where young men were spotted terrorizing members of the public. That as a result of the operation, one person was fatally shot and when the officer returned to the station, he confirmed that PC King’ori’s firearm had expended five rounds of ammunition whereas the Accused Person and PC Faraj’s firearm and ammunition were intact and the ammunitions were accounted for. PW5 said he is the one who took over the firearm from the Accused and since it was intact, he renewed it in the Arms Movement Register. PW5 also testified that PC King’ori confessed in his presence and in the presence of the other 2 officers that it is his firearm that had fired the fatal shot. That Sgt Wekesa recovered the firearm from PC King’ori and confirmed that 5 rounds of ammunition were missing.
62. PW6, IP Wekesa also confirmed that 5 rounds of ammunition were expended form PC King’ori’s firearm and he was of the opinion that they were the ones which were used at the shootout at Uwanja wa Mbuzi although no spent cartridges were recovered.
63. According to PW11, IP Nyasimi, he did not find evidence connecting the Accused to the murder because the shooting happened at night and it could not be established from whose firearm the bullet was fired.
64. From the Exhibit Memo Forms dated 1.3.2018, Nicodemus Kemboi, PW18 and PC Raphael Kogo escorted 2 Ceska pistols serial numbers F2318 that had been issued to PC Benard King’ori and Serial No. A050257 that had been issued to the Accused on the material night of the shooting incident. They also had with them Exhibit A & B being fired bullet heads that had been recovered from the body of the deceased during postmortem and they required the Ballistics Experts to ascertain whether Exhibits marked A & B were fired from Exhibits marked E1 & E2 being the Ceska pistols above.
65. By a further Exhibit Memo Form dated 3.5.2018, a 3rd Ceska pistol Serial No. F4348 was again forwarded to the Ballistics Expert with a request that it should be ascertained whether Exhibits marked A & B were fired from Exhibits E1, E2 & E3 which had been submitted to the lab by reference LAB 143/2018. The 3rd Ceska Pistol was escorted to the Ballistics Expert by PW18, Nicodemus Kipkemboi, and PC Benard King’ori.
66. PW16, SP Alex Ndindi Mwandawiro, testified that when he did comparative microscopic examination of Exhibit A & B, the bullet heads recovered from the body of the deceased in conjunction with the 9 test bullets fired in the firearms that were issued to the Accused Serial No. A050527, PC Benard King’ori Serial No. F2318 and PC Faraj Masoud F4348, it was revealed that there was sufficient matching land engraved areas (LEAS) to enable him form the opinion that the two fired bullets were fired in pistol Serial No. A050527 he established that there were fired from one gun and his observation was that they were fired from the firearm serial number KP A050257.
67. From the report of the Ballistics Expert, Exhibit A, one of the fired bullets, on physical examination revealed that it is slightly deformed and it bears 6 land engraved areas with a right hand twist. The finding on the 2nd fired bullet, Exhibit B is that it is damaged on its nasal area and it is bearing 5 land engraved areas out of a possible 6. PW16 did not explain how the deformity on Exhibit A came about or how the damage of Exhibit B on its nasal area was occasioned and how the deformity and/or damage on the respective fired bullets were related to Ceska Pistol Serial No. A050257 which was submitted to him by Nicodemus Kipkemboi and PC Raphael Kogo and which is the pistol that is indicated in the Arms Movement Book as having been issued to the Accused Person.
68. In the Ballistics Expert’s Report, the pistol that was examined is indicated as A050527 but the one submitted for examination and indicated in the Arms Register Book is A050257. The explanation by PW16 as to how inscriptions are done on firearms and why he chose to use different description from that in the Exhibit Memo Form was not satisfactory.
69. Although 3 Ceska Pistols were submitted for examination, specific detailed examination results for each of the pistols has not been included in the report to show how many land engraved areas the test fired bullets from the other two Ceska pistols bore and their comparative analysis with Exhibits A & B, the fired bullets. This would have made the court understand how he arrived at the conclusion that the fired bullets were indeed fired from one firearm and not the others.
70. PW19 relied on the finding of the Ballistics Expert to conclude that the Accused Person’s Ceska pistol Serial No. A050527 also bearing Serial No. KEKP A050257 expended the two bullets that caused the death of the deceased to charge the Accused Person herein. She acknowledged that there was no one who identified the Accused as the one who shot the deceased and she could not tell if the Accused fired any rounds during the incident. She confirmed that in the Firearms movement register, it is recorded that it is PC Benard King’ori who had his ammunition less by 5. She accused the police of conspiracy to cover up by sending PC Benard King’ori to escort an exhibit for analysis in a case where he was a suspect. She also confirmed that the Accused was not part of the cover-up by the police. She further confirmed that on the date that PC Benard King’ori escorted the exhibits to Nairobi on 3.5.2018 is the date that the Ballistic Expert wrote his report.
71. PC Benard King’ori and PC Faraj Masoud who were in the company of the Accused person on patrol on the material night of the shooting incident and who were instructed by PW5, Rtd CIP Joseph Kiplagat Cherutich to record statements to show cause why the shooting took place were not called as witnesses by the Investigating Officer and the evidence that it is PC King’ori who expended 5 rounds of ammunition during the shooting incident was therefore not refuted. PW5 testified that when the officers returned to the station and PC King’ori confessed that he fired the fatal shot, he instructed Sgt Wekesa, now IP Wekesa, to take over the firearm from PC King’ori and it was confirmed that indeed the ammunition that were issued to him were less by 5.
72. The opinion by the Ballistics Expert that it is the Accused Person’s firearm that shot the 2 fatal bullets is contradictory to the overwhelming evidence that he was not identified physically as the assailant as it was at night and that it is his companion PC Benard King’ori whose Ceska pistol fired the fatal shot. PW5 and PW6 also confirmed that the Accused Person’s firearm and ammunition were intact and PW5 took the Accused Person’s firearm and returned it to the armory.
73. As noted by PW19, it was suspicious that PC Benard King’ori who was a suspect in the shooting incident could be identified to escort exhibits in a matter in which he was involved was suspicious and compromised the integrity of the investigations, and report by the Ballistics Expert. PW17, Nicodemus Kipkemboi a Senior Investigations Officer with IPOA accompanied PC Benard King’ori on 3.5.2018 to escort Ceska pistol Serial No. 4348 when he ought to have known that the officer was among the three who were on patrol at the time that the shooting occurred and it was clearly indicated in the occurrence book and in the Arms Register that out of the 15 rounds of ammunition that were issued to him, 5 were missing.
74. In conclusion, this court finds that the evidence adduced by the prosecution does not point to the Accused Person as the one who fired the fatal shot at the deceased and therefore this court finds that he is not liable to be convicted based on evidence which clearly shows that another person fired the fatal shot. He is therefore acquitted.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 7th day of June 2024
Mr. Omwenga Advocate: I pray for a copy of the judgment and proceedings.
Order: Certified copies of proceedings and judgment to be supplied to defence & prosecution.