• Justice Lagat Korir ruled that the prosecution did not prove that the accused maliciously intended to end his colleague's life.
• A ballistic expert testified that 15 bullets were expended from Kibet's gun and one bullet from Nganga's gun.
An Administration police officer, who had been charged with murdering his colleague in Tana Delta has been convicted of manslaughter.
The murder charge against Moses Kibet was reduced to manslaughter after Justice Lagat Korir ruled the prosecution failed to prove that he maliciously intended to end the life of John Nganga.
The killing happened after the two quarrelled on December 4, 2015, at Ngao Quick Response Team (QRT) camp in Tana River county.
“From the evidence tendered, it is doubtful that he had planned to kill his colleague. No motive was demonstrated and no prior disagreement was shown,” Korir said in the judgment delivered on September 10.
The court also noted that the totality of the evidence in the case did not prove beyond reasonable doubt that Kibet had malice aforethought. He was, therefore, given the benefit of doubt.
“I find that the prosecution has not proved that the accused, in shooting the deceased, had malice aforethought which is a necessary ingredient in a charge of murder.
"I apply the provisions of Section 179 (2) of the Criminal Procedure Code and substitute the charge of murder with one of manslaughter contrary to Section 202 of the Penal Code,” Korir ruled.
Both Kibet and Nganga were APs based at Ngao QRT camp in Tana Delta. Their tents were 50 metres apart.
Their colleagues said they heard gunshots at around 9.30pm and took cover, thinking the camp was under attack.
Shortly, they realised that Kibet and Nganga had a gun fight in which the latter was fatally wounded.
Kibet reportedly approached his senior, James Mulenga, in an act of surrender by dropping his gun and raising hands and asked to be placed in a cell.
Nganga was found bleeding at the back of his tent, pleading for help.
Mulenga ordered Kibet's arrest and Nganga to be rushed to Ngao hospital from where he was referred to Malindi subcounty hospital. He was pronounced dead on arrival at the subcounty hospital.
Mulenga testified that he was the second in command at the camp. On that day he was in-charge as Inspector Justine Kimali, his senior was away.
He told the court that he was woken up by gunshots from the tents occupied by Kibet and Nganga.
His initial thought was that the camp was under attack but this changed after he saw the accused walking towards his tent and when he asked him what was wrong, he dropped his gun and raised his hands, saying: “Take me to the cells! Take me to the cells!”
Other officers arrived, disarmed and arrested him.
Nganga was found bleeding in a trench at the back of his tent.
His gun was near his camp bed. The magazine was open and there were bullets on the ground.
A postmortem report produced in court by Dr Fadia Swaleh showed the deceased’s body had three bullet wounds. The pathologist said the cause of death was severe bleeding due to the wounds.
Forensic analysis of the firearms and bullet cartridges by ballistic expert Alex Chirchir showed that Kibet fired his gun, expending 15 bullets and while Nganga's gun expended one bullet.
Kibet told the court that the deceased had abused him before firing at him. He said he fired to defend himself.
He also said he was overburdened with work and that their platoon had not been changed for more than three months.