Trader found guilty of attempting to kill Osewe over wife

A city trader accused of attempting to kill Ronalo Foods restaurant owner William Osewe by shooting him over a woman in 2016 has been found guilty. 

Tom Mboya, who is a tour operator, was convicted by Milimani chief magistrate Martha Mutuku on Monday after the court ruled that the prosecution's evidence was overwhelming to warrant his conviction.

He was convicted for attempted murder and wounding. The two men were fighting over Osewe's wife. He accused Mboya of sleeping with her. Mboya will be sentenced on Monday next week. 

While delivering the judgement, the magistrate noted that the offence of attempted murder is usually committed with an intention of killing the other person.

“I have considered the evidence before court and it is undisputed that Mboya shot Osewe," she said.

The court noted that Mboya fired at Osewe several times as he shouted at him that he would shoot him. 

The court further considered the evidence of a security guard who heard him shouting and saw him raise his gun and shoot several times at the complainant.

"It is not in dispute that the accused shot at the complainant. He did so not once but four times," the court said.

The court said that a doctor who testified said that Osewe had an object in his body and had even developed problems in his genitalia following the gun shot that affected his spinal.

She added that the submissions by the defence that spent cartridges were found in Osewe’s case did not weaken the prosecution's case as he was a legal firearm holder.

“I dismiss the defence case as the prosecution has proved count number one and two and find him guilty of the offence under Section 215 of the [Penal Code],” the magistrate ruled.

"I find the accused guilty of the offence and convict him accordingly."

Prosecution counsel Anderson Gikunda asked the court to treat Mboya as a first offender and consider the nature of the case.

In his mitigation, Mboya through lawyer Benjamin Makokha pleaded for a non-custodial sentence, saying that failing to do so would be condemning his dependents.

“My client is a polygamous family man with several kids who depend on him for survival,” Makokha told court.

Mboya was remanded at Industrial Area prison until October 4 as court waits for a pre-sentencing report, which will reflect the views of the victim.

Earlier, magistrate Mutuku dismissed an application by Mboya seeking to defer the judgment as he wanted to adduce more evidence in the case.

Through his lawyer, Mboya said he had extra evidence which he wanted to produce before the court rendered its judgment. 

He requested to defer the judgment, saying people known to the accused were ready to give more evidence.

"The witnesses we intend to call were at the scene of crime, and in the interest of justice and fairness, they need to be heard before the final judgment is delivered,” he argued.

The prosecution opposed the application, saying it was defective and not based on any law.

"This is complete abuse of the justice system where extra witnesses emerge last minute when the delivery of judgment is being made," the lawyer said. 

Gikunda questioned where the witnesses were since 2016 as the defence had been following the matter keenly.

In June, Mboya urged court to acquit him, saying he was defending himself from Osewe who was armed. But the evidence showed the hotelier was not armed.

He also previously said he was provoked beyond human endurance when Osewe allegedly threatened to chop off his penis and kill him. In any case, the sentence should be lenient, he said.  

Senior Counsel Prof Tom Ojienda asked magistrate Mutuku to acquit his client Mboya and warned Osewe to stay away from him.

"The complainant had threatened to kill the accused. We urge you to consider that the prolonged provocation of Osewe to Mboya was too much. He alleged Mboya was so close to his wife," Ojienda said.

He added, "Mboya was threatened and he acted because of the threat by Osewe. Any settlement should be done in civil court."

Gikunda had asked the court to find the accused guilty of attempted murder, saying it was by luck that Osewe survived.

"The intent was to kill the complainant. The accused knew that Osewe was dead when he went to report to the police station," Gikunda said.

He added that the complainant was not armed. "No firearm was produced to prove that Osewe was armed. We plead with the court to find Mboya guilty of the offence," he said. 

Mboya admitted shooting the restaurateur in self-defence. He told magistrate Mutuku that he aimed for Osewe’s hands because he wanted to disarm him.

The prosecution called 15 witnesses in the case.

Edited by Henry Makori