Agony of justice denied as faulty trials condemn the innocent Kenyans to dangerous jails

NAIROBI: Simon Malombe, James Chege, Charo Karisa Shung, Martin Mang’so, Peter Mwangi, John Okwaro, Samson Osenyi, Wycliffe Barasa, Benson Simiyu, Josephat Kipruto, Daniel Muasa Kamande, Dishon Nyambega and Daniel Ouma. These are 13 innocent people who were put behind bars only to be released years later after spending much of their productive life living in dehumanising conditions.

It is now a decade since Malombe was placed behind bars to await his day to hang for allegedly violently stealing from a cousin on March 12, 2005 in Muchangara village in Kirinyaga District.

Malombe was to die after his cousin James Muthie claimed he broke into his house together with another man using axes, pangas and clubs and stole Sh2,600.

PLEA OF INNOCENCE

The magistrate’s and High Court never believed in his plea of innocence. Many years later, the Court of Appeal set the judgement aside and ruled that he had spent a decade behind bars on a tainted conviction, based on questionable evidence that was never put to test .

It emerged that in both lower courts, the man was relegated to the position of a mere observer, a passive attendant of his own trial, yet in a criminal trial, the accused person is the most central character in the quest of testing the truth.

Appeal Court judges Phillip Waki, Roselyn Nambuye and Patrick Kiage while releasing him on July 15, noted: “The upshot of our consideration of this matter is that the evidence that was used to convict the appellant was fatally wanting. He did not get a fair trial as he was entitled to. His conviction cannot stand.”

They found that he was never given witness statements and elected not to cross-examine any of the witnesses, a dignified protest against a process so unfairly weighed and tilted against him.

Malombe’s cousin and his wife Monica Muthoni also gave two accounts on what happened on the day of the robbery.

Whereas the man claimed the robbers stole only his watch, his wife testified that they took away only Sh2,600 and left, leaving questions on who between the two was telling the truth. Assistant Director of Public Prosecutions Job Kaigai conceded that the failure to provide the requested statements definitely and fatally compromised the fairness of the appellant’s trial.

Similarly, James Chege saw freedom when he was escorted out of the prison gates by heavily armed warders at sunset on July 12, 2014, after spending six years behind bars. Today, the 28-year-old is enjoying freedom after he was released by the High Court, which found him innocent of robbery with violence charges and being in possession of stolen property.

“Freedom is a good thing until it is taken away from you, especially when you know you are innocent but no one believes you,” Chege said. He had been sentenced to 14 years in jail without an option of fine for allegedly robbing Samuel Kihumba of goods worth Sh824,000, including a car, while armed with an AK47 rifle. Justices Mbogholi Msagha and Lydia Achode ruled that he was an innocent passenger in the motor vehicle that had allegedly been stolen.

The judgement followed the State counsel’s consenting that Chege, who had appealed the decision by Senior Resident Magistrate EC Cherono had been wrongly charged since he was just a passenger in the motor vehicle. The lawyer had notified the court that the driver of the same car was never charged but instead Chege and the owner of the vehicle were placed in the dock. In another case, two men Atodopus Lokwanyang and Jackson Chenakou were alleged to have participated in lynching an alleged witch in Korelach village, West Pokot.

The two had already spent five years in jail from 2010 to this year when the court found that they were not part of the gang that committed the act. The case by prosecution was that the accused and the deceased were all neighbours and on August 15, 2010, village elders convened a public meeting to deliberate on allegations of witchcraft made against the deceased by the first accused (Atodopus). The meeting was attended by a large group of villagers who included the family of the deceased.

In the case, the deceased’s wife suggested that it was her and other relatives who hanged the deceased and caused his death.

CRIMINAL CULPABILITY

“Suffice to hold that the investigating officer did not carry out serious and proper investigations to determine the criminal culpability of the first and fifth accused (Atodopus and Chenakou) or any other suspect in the whole saga which led to the present offence.

“This court cannot therefore make a finding to the effect that the offence has been proved against the first and fifth accused beyond reasonable doubt,” Justice J Karanja ruled.

Charo Karisa Shungu from Kilifi County was released this year after spending two years in incarceration. His story is similar to Atodopus and Chenakou where a mob beat up a married man and his lover for allegedly engaging in an illicit affair at a funeral.

It emerged that Tabu Kaka and the man left the precincts of the funeral ceremony and went to some nearby bushes for a stolen moment of lovemaking. It was during this escapade that the man was attacked with pieces of wood and left for dead. He was rescued the following day and taken to hospital but he later succumbed to the injuries.

Charo was arrested and arraigned in court over the murder. The prosecution called Kaka as a witness and she testified that she was beaten and fled in a span of one minute though she was able to see the attackers.

She also told the court that there was no moonlight at the time.

However, the woman also testified that she did not know who beat the deceased and that she did not see the accused holding anything in his hands.Despite the contradictions in her testimony, the man was placed in prison to await his day at the gallows. The High Court released him noting that: “There are numerous gaps in the prosecution case which present doubts in the mind of the court.”

Numerous cases have been quashed by the court for lack of proper grounds to prosecute them beyond reasonable doubts. Are the police, the Director of Public Prosecution or the Courts to blame for the miscarriage of justice? After release, some of them go uncompensated or spend years trailing compensation for wrongful detention. 

Martin Mang’so spent seven years in jail for allegedly violently stealing from a house in Donholm. He was released after the court found that his accusers never identified him. “What would have saved face was to plainly concede this appeal. As we have come to the conclusion that this appeal must succeed and need not consider the other grounds raised in the appeal,” the judges noted. Peter Mwangi, on the other hand, had to be in the cold rooms from 2009 to 2015 after he was also accused of stealing from a shop in Laikipia East.

He was released by Justices Martha Koome, Alnashir Visram, and Otieno Odek after they realised the man was not the culprit, instead he happened to have given his friend the mobile phone that had been used to make threats to the woman who was robbed. The friend, John Kinoti, was later killed whilst escaping from the police.

John Okwaro spent three years in jail for allegedly breaking into a house in Nairobi and stealing a suitcase with clothes worth Sh4,000. He was released after Justice Luka Kimaru found gaps in the testimonies given to the court did  not tally.

BROUGHT TO BOOK

The court had to release Samson Osenyi and Wycliffe Barasa who had been brought to book for murder. They had already been in jail for years. The judge said the man they were accused of killing may have committed suicide by consuming poison. Benson Simiyu had been in jail for three years for robbery with violence but was released after evidence fell short of the truth.

Josephat Kipruto spent four years in jail for allegedly killing his neighbour. He was facing murder charges but the court also released him for lack of proper investigations and information linking him to the incident.

Daniel Muasa Kamande was in prison for murder and spent five years before being released for lack of evidence to link him with the murder. Dishon Nyambega was released after being in jail for two years for allegedly being in possession of machete, a knife, a pair of pliers, torch and hammer that indicated he was armed with intent to commit a felony at Migori Stadium.

He was to serve seven years but the court set him free for lack of evidence. One Daniel Ouma was found with a sword by the police. He had spent two years before his release.