Father's testimony against deceased son sets policeman free

The testimony of a father whose son was shot dead in a family dispute has seen a police officer walk to liberty.

The High Court sitting in Nyamira acquitted police officer Benson Mwita after evidence adduced by prosecution witnesses showed that the officer was the victim of a violent act by the deceased and his two brothers.

He had been accused of shooting dead Justin Mokaya, 30, in Riyabe village Kitutu Masaba Nyamira in August 2018.

Jared Mokaya Nyang’ate, the father of the deceased testified against his deceased son before Judge Esther Maina averring that the incident culminating in the case stemmed from a land dispute.

The court was told that on August 16, 2018, he went to the office of the OCS Keroka in the morning accompanied by his wife Naomi Kwamboka and three of his sons Japheth Mokaya, Justin Okoyo (the deceased) and Stephen Mokaya; his in-laws Ongwenyi and Amina and assistant chief, Peter Mokaya.

His sons had demanded that he distribute land among them. The problem arose when he declared that he would distribute his land among all of his five sons inclusive of two who he had sired out of wedlock; Tom Mokaya and Victor Mokaya who were also present.

Japheth, Justin and Stephen started a fight, throwing a family meeting that was also attended by the area chief and three clansmen into disarray.

He went to Keroka Police Station to report the matter where he received a call from his nephew Bernard who told him that his three sons, Japheth, Justin and Stephen had gone to his bedroom and burned everything.

The OCS assigned him three police officers who accompanied him to his home. They found Japheth and his wife cooking in his kitchen. Japheth began insulting him and raised an alarm alerting Stephen.

The father reiterated that his sons had armed themselves with pangas, axes and iron bars and charged at them.

 “They obstructed the police officers from doing their duty and tried to take a firearm from the accused.

He said his son Japheth was an ex-police officer having served in the GSU for ten years before he was sacked for desertion.

“As Japheth was trying to grab the firearm from the accused, the deceased tried to cut him with a panga.”

Mokaya said; “Justin tried to strike the accused with the panga who told the brothers that they had not come to fight. I left my compound fearing that the accused would be killed in my compound. I heard a gunshot as I was leaving.”

 Dr Charles Ogechi Oginde a pathologist who conducted the postmortem told the court the deceased died of a single gunshot.

Chief Inspector Hadick Jumba, the Investigating Officer opined that it is very easy to discharge a burst during a struggle if someone pulls the trigger. “The cartridges were scattered in a region, not in a line. They were fired by someone in a distress position.”

The accused told the Court that there was tension at Mokaya’s home due to a land dispute and the unexpected introduction at the meeting of Mokaya’s two sons who he sired out of wedlock.

The chief, Mokaya Omwayo Peter attested to violent disruption of the meeting and at some point referred to Mokaya’s sons as “wild.”

The deceased’s brother Stephen Makori stated that the accused held him together with the deceased by the collars but he managed to slip away from his grasp.

However, the judge pointed out that it does not seem probable that two grown men could be held in that manner by an officer using his left hand while carrying his gun on the right.

The deceased’s mother Naomi Kwamboka Mokaya on her part testified that the seizure of her sons as described was what she heard at the deceased’s funeral but she did not witness it hence rendering her evidence hearsay.

“My finding, therefore, is that there is no evidence that the accused was the aggressor or that the accused committed any unlawful act.

On the contrary, what was established was that the accused was the victim of a violent act of Mokaya’s sons and that his gun discharged a burst of fire as the deceased and his brother were trying to wrestle the gun from him,” Judge Esther ruled.

The judge further pointed out that it is the deceased and his brother who caused the sudden burst of fire.

“The death could also have been accidental as the deceased himself may not have been aware that his conduct could occasion the sudden burst.

 Having come to the above conclusion I see no need to delve into the element of malice aforethought.”

The accused’s P3 form and treatment notes proved that he was assaulted.

 “I, therefore, find his evidence that he was attacked by Mokaya’s children convincing. The Mokaya’s wife and sons on the other hand did not make any report of their alleged injuries owing to assault by the police officers nor did they seek medical attention which would have been documented hence making it unbelievable that they were assaulted,” the Judge found.

“The charge against the accused person was not proved beyond reasonable doubt and in the premises, I find him not guilty of the offence of murder and acquit him. The accused shall be set at liberty forthwith unless otherwise lawfully held.”