• Wiyema made his final submission on Monday before Justice Richard Mwongo, telling the court he acted in self-defence.
• Prosecutor Maingi said to hide the truth, the officer charged the friends of the dead fishermen with stealing a sheep.
Image: GEORGE MURAGE
The High Court will rule in February in the case of a police officer who fatally shot a Lake Naivasha fisherman six years ago.
Officer Evans Maliecha Wiyema was charged with the murder of Moses Kinyanjui Wanyoike on July 27, 2014, at Crescent Island, Lake Naivasha.
It is alleged that Wanyoike was fishing near the island with his friends Johnson Ndichu and Douglas Tutu when an Anti-Stock Theft Unit officer shot him in the head at close range.
The prosecution called 16 witnesses. The court held that Wiyema had a case to answer.
Wiyema made his final submission on Monday before justice Richard Mwongo, saying he acted in self-defence.
He claimed two key prosecution witnesses gave contradictory evidence hence their statements ought not to be believed.
A day before the killing, a sheep belonging to Crescent Island had been reported missing and the owners of the island filed a complaint with police.
Wiyema and a colleague are said to have gone in search of the sheep and pursued suspects when they sighted the three fishermen.
The prosecution told court that it has enough evidence to prove the officer intentionally shot the fisherman and later tried to conceal his action.
“This is a clear case of excessive use of force and police brutality. Following the shooting, the officer tried to cover up the death. Only when there was a public outcry did police search for the body," senior prosecution counsel Nelly Maingi said.
He also asked the court to note that Wiyema’s colleague who was with him at the time of the shooting did not fire a single shot, thus, a claim of self-defence can’t be supported
Maingi said after the shooting and in a bid to hide the truth, the officer charged the victim's friends with stealing a sheep.
Her submissions were supported by the victim’s lawyer, Eddy Mbanya. He told the court the prosecution had established beyond a reasonable doubt that the accused is guilty of murder.
Mbanya, a lawyer from the International Justice Mission, said the officer ought to have been guided by the Police Service Act requiring police to use non-violent means as the first option.
Force should only be used when non-violent means are ineffective, the Act says.
He said the accused is criminally culpable as he was fully aware his action would cause the death or grievous harm.
“The testimony of the accused person is riddled with contradictions and inconsistencies and is not corroborated and should therefore be disregarded,” Mbanya added.
The lawyer said Wiyema testified under oath and confirmed he shot the victim but denied he was on a boat. He asserted he was on the edge of the shore on dry land.
He claimed he saw the fisherman approach him with a panga, warned him verbally and shot in the air before shooting the man.
The accused also told the court that he lost his balance, fell and did not see the person he shot.
“Even if his testimony were to be believed, he had an opportunity and time to shoot the deceased with intent to disable him but not to kill him with a gunshot to the head. His act was reckless," Mbanya said.
(Edited by V. Graham)