How prosecution watered down its case with last minute change of charge

 The accused were alleged to have obstructed a street near City Hall. [PHOTO: FILE/STANDARD

By WAHOME THUKU

Nairobi, Kenya: It is not uncommon to come across large groups of people in Nairobi’s Central Business District on footpaths discussing current affairs, particularly of political nature.

Though such congregations are contrary to city by-laws, prosecuting the offenders successfully can be a big challenge, especially if the culprits decide to deny the charges.

Sometime in August last year, Nairobi County decided to crack down on a group called Bunge la Mwananchi (People’s Parliament), which had gathered near City Hall, to debate political issues.

The county government had allegedly received a complaint from business owners that the group was obstructing their customers and other pedestrians. The county claimed it had received a complaint letter from Regent Management.

On August 6, 2013, a team of undercover council officers were sent to the specific spots on Wabera Street, outside Ellis House. They arrived at around 9am and laid an ambush, waiting for the group to congregate.

At around noon, the group started forming and the officers struck. In the operation that took several hours, more than 20 people were arrested. Others managed to escape. Among those arrested was Nathan Sitati Wamakacha, who was said to be the “Speaker” of Bunge la Mwananchi.

The suspects were all arraigned before Senior Resident Magistrate Margaret Kurumbu at City Hall, charged with willfully obstructing free passage of a street contrary to Bylaw 14 read with By-law 30 of the General Nuisance Bylaws 2007.

Most of them accepted the charges and were fined Sh2,000 each.

However seven of them including Mr Sitati denied the charges and were released on Sh2,000 cash bail each pending trial. A Nairobi human rights organisation instructed lawyer Suyianka Lempaa to represent them.

During trial, the prosecution amended the charge and decided to charge them with obstruction under By-law 9(3) of the Traffic Management Bylaw  Act 2009. That was a big mistake on the part of the prosecution. Under that by-law, one is supposed to have refused to move from a street after being ordered to do so by an authorised officer.

The county called four witnesses all of them city askaris involved in the operation. The four, Mr Julius Kenyatta, Mr Julius Muthui, Mr Dennis Kefa Ogati and Mr Donald Oruna Orucha had recorded statements that were almost identical, explaining how they arrested the accused.

None of them had said in their statements that the accused had been ordered to disperse and had defied the order.

The officers told the court that they were instructed by their bosses, a Mr Ngei and a Mr Musa, to make the arrests.

Mr Ogati told the court that Musa had ordered the group to disperse but they defied the order. Mr Oruna said he never heard Musa issuing such an order. Kenyatta and Muthui told the court they never even saw  Musa at the scene. The witnesses also never produced the letter said to have been written by Regent Management.

The seven accused were put on their defence and lawyer Lempaa led them in unsworn evidence. Each of them said he was a businessman in Nairobi. They all denied having gathered at the scene on that day, saying they were arrested while carrying on with their private business. They said they had not been asked by anyone to disperse and that if they had, they would have complied.

Main contention

The magistrate had no difficulties dealing with the case. First she reached a conclusion that from the evidence, there was a crowd that always gathered at the Wabera/City Hall Way obstructing movement of other people.

She also found that the accused participated in these gatherings. Mr Sitati had been identified by the witnesses as the one who addressed the gatherings.

And although the accused had denied the offence, they had admitted the same by stating that if they had been ordered to disperse they would have complied.

“If indeed they were each going on with their activities, they would not have needed to be told to leave,” Ms Kurumbu observed “What I hear is that they indeed gathered, were not told to leave but instead the council askaris just pounced and arrested them. Their main contention is that they were never told to disperse as alleged.”

The magistrate said the fact that they were not asked to disperse was not an excuse for committing an offence of willfully obstructing free passage of a street. If the council had retained the initial charge and not amended it, the court would have convicted them. But having amended it, the new charge now required that the accused should have been told to disperse and only arrested after refusing to do so.

 “That amendment made the element of being told to disperse a key part of the offence. It needed to be proved beyond reasonable doubt that indeed such instructions were given, by who, when and the response of failing to disperse,” the magistrate said.

She said from evidence, it had not been proved that such an order was given. The contradictions among the witnesses on whether Musa was present and gave that order, gave the accused the benefit of doubt.

The magistrate said since an offence under the earlier charge had been proved, the Criminal Procedure Code (CPC) allowed her to convict them under that by-law. But in this case, the prosecution had deliberately amended the charge to the Traffic Management By-laws.

“It’s the prosecution’s case and I don’t want to depart from that express intention,” Ms Kurumbu concluded.

She warned, however, that gathering on footpaths remained illegal and must be discouraged at all times. “If people want to gather they should do so within the law,” she added.

 With that, she ruled on February 2, this year that the seven accused were not guilty under the Traffic Management By-law and acquitted them under Section 215 of the CPC.