Former special unit officers to know fate on May 30

Former Special Service Unit (SSU) officer John Macharia and his 14 co-accused will know their fate on May 30, whether murder charges against them will be quashed.

Macharia, in a petition, wants Justice Abigal Mshila to quash the charge of murdering two Indians and their taxi driver preferred against them by the Director of Public Prosecutions alongside 12 SSU members.

Also facing the same charge are an officer from the Kenya Wildlife Service (KWS) and the National Intelligence Service (NIS).

 The Indians, Zulfiqar Khan, Sami Zaid Kidwai and their Kenyan taxi driver, Nicodemus Mwania, were allegedly kidnapped along Mombasa Road on July 22, 2022, while heading to a Nairobi hotel after a night out in Westlands.

Macharia's co-accused are Peter Muthee, James Kiboseck, Joseph Mbugua, Simon Muhuga, David Kipsoi, Stephen Matunda, John Mwangi, Paul Njogu, Hillary Kipchumba, Redrick Thuku, Joseph Mwenda, Boniface Otieno, Elikana Njeru (NIS) and Michael Bett(KWS).

He is represented by lawyer Steve Ogolla, while his co-accused are represented by Clinton Mwale, Danstun Omari and Wandugi Karathe.

Through Ogolla, Macharia told Justice Mshila that there was no evidence linking the 15 to the crime.

The lawyer faulted the DPP saying that in response to their petition, he had characterized that Macharia’s petition was in response to the proof of body.

 He argued that was not the thrust of their petition since they understand that a murder charge can be sustained by direct or circumstantial evidence.

 According to Ogolla, the petitioner and the interested parties want proof that the death occurred.

 “There is no internal memo supporting the decision to charge or forensic evidence indicating death; no death certificate has been provided,” said Ogolla.

 He added that there has not been an obituary, burial or advertisement by the families of the deceased.

 The lawyer said that they are challenging the DPP’s decision to have two files related to the same crime at both the Kahawa Magistrates Court and the Kiambu High Court.

 “The families reported these people as missing, and that file has not been closed.”

 While picking holes into the opposition to their petition by DPP, Ogolla argued that in the magistrate's court case, the DPP in the charge sheet said Khan, Kidwai and Mwania were picked from Mombasa road and killed in the Aberdare forest.

 However, he said that two years later, the DPP decided to charge the 15 with murder and in the charge sheet stated that they were killed somewhere in Mombasa road.

 The lawyer said that the petition is not about who killed the three but whether they are dead.

 He argued that the decision to charge the 15 with murder by the DPP was an abuse of discretion to charge.

 "We have not challenged them being charged with abduction with intent to murder," he said.

 “They (victims) were reported as missing, and there were no reports of their whereabouts, and the DPP formed the opinion that the petitioners were responsible," added Ogolla.

He argued that from that, the DPP then took a sharp turn and preferred murder charges against the petitioner and Interested Parties.

Lawyer Mwale, in his submissions, said that the victims have not been missing for more than seven years without a trace by families and authorities to warrant their presumption that they are dead.

 “No material has been presented alluding to the death,” he said.

He said that the DPP had not presented any circumstantial evidence on death, adding that the evidence in the abduction case is the same the DPP has tabled in the murder case.

 “There has not been a report from investigative agencies bringing to a conclusion that the missing are indeed presumed dead.”

 Mwale said that actions by the DPP are an abuse of the court process that ought to be stopped by the judge.

 “The intent to charge was immature as there had not been any circumstantial evidence on death presented,” said Mwale.

 “The DPP can’t assume powers to presume someone dead.”

 He called on Justice Mshila to quash the charges since they do not meet the requirements of the law.

 The DPP, through Augustine Gacharia, said that there was interference in the abduction case, hence, they took time before getting the evidence to charge the 15 with murder.

 He was appearing in the matter alongside James Machira, Allen Mulama and Ken Amwayi.

 He said that Macharia, the petitioner, was speculating on the lack of evidence

 “The respondent (DPP) must act independently without any direction from anyone,” said Gachira.

 He said that the decision to charge them with murder was made regarding the law and not in bad faith.

According to Gachira, they had demonstrated why it took time to charge them with murder and wanted the petition stopped.

 “The petitioner's claims do not present a plain and obvious breach by the respondent,” said Gachira.

 He said that they had applied to have the Magistrate Court case consolidated with the High Court’s murder charge days before the petitioner filed his petition.

 He said that this was done to ensure that the 15 accused persons did not suffer the double jeopardy of being tried by different courts over the same matter.

 Gachira said that death can only be determined through the evidence tabled after trial, adding that their case is based on circumstantial evidence.

 He said that they had demonstrated that there is circumstantial evidence which is good enough, adding that its weight will be determined in the murder file.

 He said that even though the families of the deceased had not done burial rights, that did not mean that they were not grieving.

 “The families of the deceased have been denied the chance to have funeral rites for their kin,” he said.

 He said that there was hiding of evidence, including interference with the investigation by the skilled servicemen.

 He said that the petitioner ought to prove the issue of bad faith by the DPP in choosing to charge with murder.

In a rejoinder, Ogolla said that the case is a constitutional petition, yet the DPP cites an affidavit by the investigating officer, begging the question of who made the decision to charge and if it is a shared responsibility.

 He said that there was no indication by the DPP that there was circumstantial evidence since it had not been tabled before Justice Mshila in the petition or in the murder file.

 He said that by charging people, the DPP was rushing the families of the victims to closure through the murder charge.

 Ogolla faulted the DPP, saying that they had not responded to the question of prima facie evidence; instead, they were telling the court to leave them alone.

 Justice Mshila will issue a judgment on the issue on May 30, 2025, virtually.

 Directions in the criminal case will be issued on the same day.