How police bungle ‘open and shut’ murder cases

Joseph Kang’ethe, a murder suspect released by a court, with MUHURI director Khelef Khalifa when he turned himself to the police. Kang’ethe was later found dead. [Kibata Kihu, Standard]

On August 22, 2017 Mwangi surrendered to police officers at Endarasha in Nyeri County and confessed to killing his cousin in a fit of rage.

He had details only the killer could know -- where the body was hidden, what weapon was used and even the time the murder occurred. Mwangi also had the deceased’s mobile phone.

On his information, the deceased’s body was found outside the family’s home. He had strangled him with a belt.

Yet, despite the confession, police officers and prosecutors could not secure a conviction in what was arguably an open and shut case.

No evidence

Mr Mwangi was on Friday released by the High Court in Nyeri thanks to an oversight which betrays the ineptitude of police and prosecutors.

Despite confessing to a police officer, the confession was never submitted as evidence in court and neither did the officer who recorded the confession, testify.

Justice Teresiah Matheka ruled that Mwangi should not have been arraigned in court since there was no evidence linking him to the murder.

“The police officer did not bring the confession to court, he failed to testify or provide his statement in regard to the case. This is a case where police make arrest and say let the court deal with it,” Justice Matheka said.

She also faulted the prosecution for presenting the case despite a psychiatric evaluation finding that the accused was not mentally fit as he was suffering from illusions.

In another case that collapsed on almost similar circumstances, the court found that the confession was conducted contrary to rules which direct that an investigating officer cannot record a confession.

Lazarus Kariuki and John Nderitu were facing robbery with violence charges. They were accused of stealing Charles Kagumba Ngari’s phone and killing him on June 10, 2013.

However, the High Court set aside the death sentences imposed on the duo and ordered a retrial after lawyers pointed out missteps in the prosecution.

Lawyers argued that an ineligible police officer had recorded a confession from the suspects and that a report concerning the stolen phone was inadmissible since the police had submitted the wrong IMEI number to Safaricom.

The defence team also told the court that the IMEI number taken to Safaricom for analysis did not belong to the deceased’s phone and therefore the report produced in court did not have a bearing on the case.

Similarly, the Nyeri Chief Magistrate’s Court was forced to free three men who were accused of gunning down a senior police officer and stealing his gun after their confession failed to hold up.

The suspects were on trial for the June 13, 2009 robbery and murder of John Kimanzi Nzau, an OCPD in Othaya.

The court agreed with the lawyers argument that the confession recorded by one of them John Wakaru was inadmissible for failure to comply with the Evidence Act and Chief Justice Rules on confessions.

Wrongly handled

Prosecutor Wesley Nyamache conceded to the argument and withdrew the case.

“It was very unfortunate that the confession was not properly handled as this was a very serious offence,” Chief Magistrate Wendy Kagendo said.

“The accused persons are not to blame for the omissions and the court will not allow the Sword of Damocles to continue hanging over their heads indefinitely.”

Lawyer Wahome Gikonyo said despite playing a key role in the administration of justice, police officers were not put up to date with changes in key laws.

“The law keeps on changing. The Confession Rules came in force in 2009 and some police officers may not have been trained,” the lawyer said.

He said the Director of Public Prosecutions should train officers in criminal procedure and investigations.