How DJ Evolve's shooting case against Babu Owino flopped

The charge was subsequently dropped after Babu and DJ Evolve inked an 18-page deal that untied the lawmaker from the grip of the law.

Following the withdrawal, the only remaining charge was of allegedly behaving disorderly while carrying a gun.

This too fell on Tuesday, leading to Babu's acquittal, ultimately affirming him 'msafi kama pamba' (pure as cotton) in the eyes of the law.

At the end of the trial, three things became clear; no one in the club witnessed the saga, the CCTV clip produced before court did not tell whether the DJ was shot and who shot him and all witnesses called by the state, including the victim himself, discredited the evidence by the investigating officer.

Was DJ Evolve shot and by who?

This is the only puzzle investigators were to piece together and bring the perpetrator to book. They failed, and miserably so.

In what Milimani Court magistrate Bernard Ochoi observed as either sheer or deliberate negligence, the officer never recorded DJ Evolve's statement, he (the investigator) never listed DJ Evolve as a witness, and did not collect the bullet cartridge at the scene, and never availed the person who collected the same.

Although Evolve was the victim, his testimony exonerated Babu as a defence witness.

"In the absence of any other witness who could give an oral account of what transpired I believe the evidence Felix Orinda himself is very crucial as he was the victim of the said shooting and could have seen what transpired before the incident.

"Surprisingly the said Felix Orinda who was expected to be a key witness for the state was not a prosecution witness in fact the I.O (Investigating Officer) on cross-examination stated that he did not record a statement from Felix Orinda the victim of the alleged shooting and one wonders whether it was deliberate or a case of negligence he did not state that he approached Felix for recording a statement but refused," Ochoi observed.

The state called 10 witnesses. First witness was George Mburi, who was a guard at the club.

He testified that on the fateful day, Babu went to the club at around midnight, and sat at his favourite spot.

Mburi said he went to patrol the premises but was called by a staff who said Evolve had fallen. Further, he stated that he found the DJ lying down.

The guard's statement was however substantially different from what he had told the police in his statement.

This prompted the prosecution to seek an order to declare Mburi a hostile witness.

Upon being cross-examined by the prosecutor, he indicated that Babu had called him and asked how to deal with his firearm and he advised the MP to hand it over to his security officer who was a police officer.

Mburi also stated on further cross-examination that Babu called him and asked him to collect the firearm from his security officer he went with the security officer to the safe and he was briefed that one round was in the chamber.

The first witness stated said security officers left around 4am as they had other duties the following day. Mburi further stated that he recorded in his statement that he locked the firearm in the safe and informed the MP. On further cross-examination, he said DJ Evolve saw him hand over the firearm to Babu.

Asked by Babu's lawyer Duncan Okatch about his statement to the police, Mburi said he recorded it under duress as they had left work late and were told that they must record it before going home.

The guard also stated that he was not in the club when DJ Felix was shot and had not seen Babu Owino with a gun and did not see the shooting.

Godfrey Mwai, was a second witness. The club manager also said he never saw DJ Evolve being shot as he was in another club, Gossip Club at Lavington. Mwai claimed when he arrived, he saw the DJ lying down and Babu standing near him. According to Mwai, the MP asked him to assist in rushing Evolve to Nairobi Hospital.

DJ Evolve during a previous event before he was involved in dramatic shooting. [File, Standard]

The other state witness was Derrick Makoha. He told the court that he worked as a driver and he was the one who took DJ Evolve to hospital alongside Babu, Mwai, and a cleaner.

Babu's bodyguard Hamisi Ali also gave his account. Ali narrated that he had guarded the politician from 2018. On the fateful night, he said, he sat 2-3 metres away from Babu and his other colleague sat somewhere else nearby from where they could see the MP.

The bodyguard said he was aware Babu was a licensed firearm holder and had a black firearm but he did not see him with the firearm on the material day.

He stated that there was no lousy incident that had taken place by the time they were leaving but later in the morning of January 17, 2020, a bouncer at the club called him and asked him to go the club as an incident had happened.

Ali said he decided to first report at his workplace at Mbagathi road but when he arrived there his boss asked him about the incident which was being shown on TV about the shooting and when he said he did not know, he was asked to surrender his Jericho Pistol and asked to be on standby. Ali said he did not witness anything unusual on the material day while at the club.

Elvis Ogolla, a reveler at the club also said he never saw the incident. He narrated that his girlfriend came to the club, and they quarreled but nevertheless, he saw her off.

Flora Chalo and Curtis Nabali were also called as witnesses. They too said they never saw anything.

After the persons who the state believed would give a first account of what happened failed to tell its story, the only persons remaining were police officers.

The first was Inspector Robert Kiptum, a Directorate of Criminal Investigations ballistic forensic officer. He said he was given a pistol, one magazine, nine rounds of ammunition, a cartridge and a bullet. He was also given another pistol magazine and 85 rounds of ammunition for forensic investigation.

However, Kiptum said he did not know where the exhibits were brought from and particularly, it was impossible to tell if the bullet presented to him was fired from the pistol.

He told the court that the exhibits were kept in the armory and were under one sergeant Mworia who handed them to him while already marked.

The other witness was Chief Inspector George Aringo, from the DCI's cybercrime unit. He said that he reviewed the B-Club's CCTV.

He stated that he could see from the footage Babu shooting the other person on the chest and captured this in his report and later the accused is seen carrying the person he was having a confrontation with towards the exit.

However, the Inspector testified that the CCTV was downloaded to a flash disk before being downloaded to the DVD but he did not describe the DVD in his certificate. He stated that the letter he received asking for help in extraction was not dated.

The star witness was the investigating officer. Corporal Dennis Miheso told the court that he was one of the investigators. Others were Sergeant Mworia, DCIO Kilimani one Katuma, and PC Kevin Kisasati.

Although he claimed Babu shot DJ Evolve, on cross-examination, Miheso stated he never called for crime scene officers to secure the scene. At the same time, the officer testified that the bullet that penetrated the victim was recovered at the scene by an officer he could not recall.

On further cross-examination, Miheso stated some DNA samples were taken from the accused for analysis but was not sure whether they were received from the Government chemist. He also said that the bullet head was not checked of blood stains for DNA analysis.