In Summary: Two officers were found not guilty to the killing of two Narok residents who were part of a protest.
Written by Cyrus Kimanga | |
Two police officers could not hide their joy at Milimani Courts after being vindicated in a murder case stretching for the last seven years.
In the incident that occurred in 2015, two people were killed while dozens others wounded when a protest to press for the ouster of Governor Samuel ole Tunai turned violent.
They had gone on with the planned demonstration despite Interior Cabinet Secretary Joseph Nkaissery banning it.
The victims were allegedly shot dead by police who had been overwhelmed by protesters.
The two, James Kimpila Ntempei and James Ole Kisio were charged with murder contrary to section 220 of the Penal Code.
They were also charged with causing grievous harm contrary to section 234 of the Penal Code.
In response to the charges both the accused persons pleaded not guilty and were put to defense.
False Witnesses
The prosecution called a total of fifteen witnesses and their evidence is summarized as below.
Prosecution Witnesses (PW) one, two and three; Moses Tenga, Hassan Opamwaro and Philip Olemboi respectively.
Basically, as per their testimony is that the two accused persons were present on the material date of the demonstration.
They however testified having not seen the two accused shoot anyone.
These three witnesses were part of the leaders who were present on the demonstration day, hence they spoke to the genesis and background of the demonstration and the charges.
Prosecution witness five told the Court that accused two shot Allan Migati on the leg with a big gun.
Further, he stated that Olekisoi and James were shot by accused one.
In cross examination, PW 5 was put to task as per his testimony.
He later on contradicted his statement by saying accused one shot Allan Migati with a firearm he cannot recall.
He also said he could not identify accused one during the demonstration due to teargas.
Unarmed
The Court analyzed all the evidence and the prosecution side lost its case on the following grounds;
According to Masai Mara game reserve firearm movement book tabled in Court as evidence, it does not show that the two accused persons were issued with firearms on the material date.
PW 9, a senior warden at the reserve testified that both the accused persons were on duty on the fateful day and produced a daily allocation roster. As per the roster the first accused does not appear on the duty allocation roster.
That the two accused were not armed on the said day.
The Doctor who treated Allan testified before Court that he could not identify the bullet that injured him.
The surviving victims testified that they could not identify the suspects.
The prosecution did not proof mens rea element and that the guilty mind was not proved. The prosecution did not proof whether the first accused had a positive intention to cause the death of the said victims.
The prosecution also failed to successfully pin the two police officers to the crime scene.
There was no evidence given to the Court to show the accused persons had any reason to cause the unlawful death of the three victims.
Having analyzed the evidence, the Court acquitted the two accused persons pursuant to section 210 of the Criminal Procedure Code and ordered for refund of their deposited cash bail unconditionally.
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