- The judge found that the release of the accused on bail will endanger public order and their safety of the accused will also be in danger.
Image: FILE
Two police officers accused of killing a man in Mathare North estate in 2020 while enforcing the curfew will remain in custody pending hearing and determination of their case.
This is after court denied the two bail.
Police inspector Daniel Musau and corporal Robert Kibororo were charged with the murder of Vitalis Owino alias Madaraka on May 3, 2020.
The duo was formerly based at Muthaiga police station.
In a ruling delivered yesterday by Justice J Bwonwong’a, the judge found credible the deposition of the investigating officer that the three key prosecution witnesses had variously received threats and intimidation from persons suspected to be proxies of the accused. They communicated the same to the lead investigator that they are vulnerable witnesses.
He said based on the evidence, the accused if released on bail are likely to interfere with the witnesses.
The judge also found that the release of the accused on bail will endanger public order.
Their release on bail will rekindle and act as a catalyst to the existing animosity and this will disturb public order. This is more so given the credible deposition that both accused have served for a long time at Muthaiga police station, he said.
It was noted that Kibororo had served in that police station for over 20 years.
"I therefore find that these are compelling reasons within the meaning of article 49 (1) (h) of the Constitution to deny them bail. The application of the applicants fails and is hereby dismissed in its entirety. " Justice Bwonwong’a ruled.
Musau and Kibororo were arrested in August last year following investigations conducted by the Independent Policing Oversight Authority over the death of Owino.
Owino died from injuries sustained after his arrest by police officers enforcing the curfew at Mradi area, Mathare North, Nairobi.
In the application, the accused had argued that they are long serving police officers without any disciplinary record and were not flight risks since they have fixed abodes and are family persons married with school going children. They said they are still innocent until proven guilty.
The officers deposed that the grant of bail is a constitutional right and the prosecution had not produced any compelling reason to deny the grant of bail.
"Since May 2020 when the offence took place, none of the prosecution witnesses has made any formal complaint to the police that they have been threatened or intimidated," they argued.
Their lawyer said if the applicants are released on bail they will relocate to their rural homes and will undertake to report to the nearest police station.
Based on instructions from the accused, their counsel added that the tension that was experienced in the Mathare area after the death of the deceased has long died off and there have been no incidents of violence in the area since May 2020.
Counsel argued that the denial of bail would condemn and paint the accused as murderers even before their case is heard and determined.
However, the DPP through the investigating officer opposed their release saying the two officers who were on patrol came across Owino who had gone out of the house to answer a call of nature. The accused then descended upon him with rungus for flouting curfew orders.
The accused then left the deceased on the ground, who was unable to walk after being badly injured.
In the meantime, the accused went and joined the other officers on patrol. Owino died subsequently due to bleeding from the injuries he sustained.
The DPP added that the accused are serving police officers and they therefore exercise all police powers and privileges, a fact that inspires fear and intimidation among witnesses.
The court heard that in the course of investigations, the investigator was supplied with the employment history of Kibororo, which showed that he has worked at the Muthaiga police station for a continuous period of 21 years as an investigator, cells sentry, patrol duties, and police operation and manning crime office report in which he interacted with the population of Mathare slums immensely.
Musau an inspector has authority to order his juniors to locate and convince witnesses to recant their statements when called to testify.
The prosecution further said as regards Kibororo, the investigator had found that he has less than three years to retire, there is apprehension that he is likely to interfere with witnesses to give skewed testimony so that he is acquitted which will enable him to be paid his retirement benefits.
The families of the deceased are greatly impacted by the loss and the release of the accused on bail would be prejudicial to them.
"Furthermore, the three key prosecution witnesses have variously received threats and intimidation from persons suspected to be proxies of the accused. They communicated the same to the lead investigator that they are vulnerable witnesses. These witnesses remain highly apprehensive of their fate should the applicants be released on bail," the prosecution said.
The DPP added that the accused being police officers, are capable of interfering and intimidating witnesses, since they have the technical knowledge and facilities such as tracking devices which they may use to track the witnesses.
-Edited by SKanyara