BY IPOA News Team:
The High Court in Nairobi has convicted two police officers of murder, following a successful investigation by the Independent Policing Oversight Authority.
Constables Benjamin Kahindi Changawa and Stanley Okoti jointly and unlawfully killed Mr Geoffrey Nyabuto Mogoi, Mr Amos Okenye Makori and Administration Police Constable Joseph Obongo Onchuru.
The three who were also relatives, were shot dead at M-Club, an entertainment joint at Kangemi in Nairobi on October 7, 2014.
In delivering the judgment on November 1, 2018, Justice S. N. Mutuku poked holes in the Defence’s argument and instead upheld the evidence adduced by an IPOA investigator, noting that “the prosecution has proved beyond reasonable doubt all the ingredients of murder.”
At the time of the unfortunate incident, the two Constables who were attached to Nairobi’s Kabete police station told the Court they were responding to an armed robbery at the Club and identified the victims as the “suspects.”
IPOA was formed in 2012 to check police excesses against civilians, including unlawful killings, inflicting serious injuries and gross misconduct among other ills.
Before IPOA came into being through an Act of parliament, complaints against rogue police officers were investigated through the Service’s rank and file, and the errant officers often walked scot free.
In her judgement, Justice Mutuku noted the officers’ line of defence; “They (accused) said that they asked the suspects (murder victims) to surrender but the suspects did not obey the order and instead started shooting at them. They said that they returned fire and shot at the three suspects killing them instantly.”
This explanation has over the years become synonymous with police accounts of events at scenes involving fatal shootings.
In this case, Okoti who is one of the accused police officers told the court that he identified himself and his colleagues on arrival at the scene, asked the “robbers” to surrender then fired two warning shots in the air.
Justice Mutuku however, revisited the evidence that was gathered by IPOA as it was recounted in court by the Authority’s investigating officer.
The learned Judge said: “This is not true according to the testimony of the investigating officer. This witness visited the scene and collected a bullet jacketing. When the bullet jacketing was examined….. it was found to be a component of caliber 7.62 mm rifle bullet that had been fired in AK 47 rifle serial No. 4915760.”
The Judge went on: “This is the rifle issued to the accused on October 7, 2014 (the material day). The jacketing was recovered on the floor next to the counter. Further evidence shows that the bullet recovered from the body of Geoffrey Nyabuto Mogoi was confirmed by the firearms examiner to have been fired from the AK 47 serial No. 4917120.”
“This evidence confirms to me that the accused persons shot at the deceased persons and that none of them shot in the air,” Justice Mutuku concluded.
The Judgment also took note of a piece of puzzling evidence, arising from the fact that Mr Onchuru, the AP who was killed, was also armed with an official pistol, and a postmortem examination revealed bullets were fired from it.
“One issue keeps bothering me. Who used the pistol issued to APC Onchuru? If I were to believe the accused persons that it is the deceased persons who shot at them,” according to the Judge.
The Judgement explains further: “Did Onchuru use the pistol to shoot at the accused persons? I have stated there is no evidence to prove that was the case. Even if it were so, would Onchuru have shot himself using his own pistol? There is evidence from Dr Oduor that Onchuru had gunshot wounds from high and low velocity firearms.”
An AK-47 rifle, like those that were in possession of the convicted officers is a high velocity gun while a low velocity one is simply a pistol.
Dr Oduor Johansen is the pathologist who conducted the autopsy.
The learned Judge drew yet another conclusion; “I doubt that Onchuru shot himself and the only logical conclusion I can draw is that one of the accused persons who took the pistol from Onchuru used the same gun on Onchuru as well as the AK-47 rifle in his possession.”
A total of 12 bullets were shot into the bodies of the victims and the Court said they were neither fired to immobilize nor to protect lives of that may have been in danger.
The Judge also relied on the evidence of the bar’s attendants to conclude that two of the victims were lying on the floor in surrender while the AP officer and handed out his gun, but were fatally shot nonetheless.
The Judgement also delved into the supreme law saying “Article 244 of the Constitution mandates the National Police Service inter alia to strive for the highest standards of professionalism and discipline among its members; to comply with constitutional standards of human rights and fundamental freedoms and to train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity.”
Part of IPOA Act states that the objectives of the Authority shall be to hold the Police accountable to the public in the performance of their functions and give effect to the provision of Article 244 of the Constitution.