•The family wants the court to convict the five of murder.
•They said the prosecution had established the presence of a mens rea.
Image: ENOS TECHE
The family of the late lawyer Willie Kimani now says four administration police(AP) officers and their informant planned the gruesome murder of their son.
They want the APs - Fredrick Leliman, Stephen Cheburet, Sylvia Wanjiku and Leonard Mwangi- who were charged alongside Peter Ngugi, the police informant, to be convicted for the murder.
Through the Law Society of Kenya, the family wants the court to find all the accused guilty of the murder of Kimani, his client Josephat Mwenda and driver Joseph Muiruri.
They noted that Willie and Muiruri were collateral damage since the person they were after was his client Mwenda.
“It is evident that the accused set about a joint enterprise with a common intention to permanently silence Mwenda with Willie and Muiruri being collateral damage whose death was necessary for the attainment of a common intention,” reads court papers.
In their final submission, they said the prosecution had established the presence of a mens rea (criminal intent).
“The general rule is that all parties to joint criminal activities are equally liable for the consequences of their execution, including unforeseen consequences,” they argued.
They want Wanjiku and Cheburet to be held liable for unlawfully detaining the three victims at the crime scene.
“Mwangi, Leliman and Ngugi were present when the bodies of the three deceased were disposed of in River Athi near Ol Donyo Sabuk,” LSK claimed.
LSK has beseeched court to find Leliman guilty of the murder of the three and convict him accordingly.
“The other four knowingly participated as accomplices in joint criminal activities leading to the murder of the victims and should be convicted accordingly,” LSK said.
They also noted that the contradicting accounts by police officers from Mlolongo Weighbridge, Mlolongo Police Station and the AP Post reveal a strategy to deter disclosure of adverse testimony.
“The big question is who is Ngugi shielding given that he did not call PC Mwaniki to corroborate or identify the lady who detained the three persons and her phone number,” reads court papers.
On their part, the prosecution has also urged the court to find all the five guilty.
State Counsel Nicholas Mutuku, in his submissions, said they have proved beyond any reasonable doubt that the five accused persons jointly and severally murdered the deceased persons.
He said the accused persons had formed the requisite malice aforethought to cause the death of the deceased and urged the court to find prosecution has discharged its burden of proof in respect of each accused person.
“We pray your ladyship to find all the accused persons guilty of the offence of murder, record conviction under section 322 of the criminal procedure code and pass the appropriate sentence,” Mutuku submitted.
He further said Wanjiku and Cheburet are persons who are principal offenders to the extent that they illegally aided in the detention of the deceased persons in failing to book them as required and later releasing them to their executioners.
“Had the two accused persons followed the procedure, booked the deceased in the OB at Syokimau AP Post as required, this grisly murder could have been thwarted or avoided, but they chose to be part of the plan,” he added.