A Magistrates court has acquitted Embakasi MP Babu Owino in a case in which he was charged with misusing his firearm in relation to the shooting of DJ Evolve.
Magistrate Bernard Ochoi said the prosecution did a shoddy job as no evidence was produced to prove the charges levelled against Babu.
After analyzing the evidence produced in court, Ochoi identified two issues for determination in the case.
One was whether Babu was drunk and behaved in a disorderly manner on the night DJ Evolve was allegedly shot.
Second was whether DJ Evolve sustained a gunshot and if it was from Babu, was there intent to do so?
The court said there is no doubt the environment in which the offence took place is a popular joint for food and drinks.
It relied on CCTV footage which showed people eating and drinking.
Babu had denied taking alcohol that night. However, the court was not convinced by his testimony because there were prosecution witnesses who testified to seeing him taking alcohol.
However, there was no evidence produced in court by the investigating team with respect to Babu's sobriety.
"Samples taken don't show that the investigating officer desired to know the alcoholic content in babus blood."
In the absence of the blood tests and results, the court said the aspect of drunkenness could not be established.
The only evidence touching on Babu's conduct that evening was from the investigator who was not at the scene.
The Investigating officer testified that Babu conducted himself in a disorderly manner after reviewing the CCTV footage.
The court said the prosecution did a 'shoddy job' as no medical evidence was tendered to show what injuries DJ Evolve sustained.
Ochoi said that the Investigating officer appeared to have been relying on CCTV footage.
"In my view, the footage can't be substituted for medical evidence. A medical report or p3 form should have been availed to confirm the victim had suffered a gunshot wound," said the Magistrate.
When the court reviewed the CCTV footage which was played in court it noted that the background was dark but the counter where Babu was standing was Clear. However, the Investigating officer said he could not be able to see or identify Babu's gun from the clip. There was no evidence to show Evolve was injured by a bullet.
"Surprisingly the investigating officer stated that he did not record a statement from DJ Evolve. One wonders whether it was deliberate or a case of negligence," said the court.
In a quitting Babu, the court said the ballistic report didn't conclusively find that Babu's firearms were used in the Act.
The person who recovered the bullet head and the cartridge was never called in to testify.
"If the bullet head was recovered on the wall as claimed was it not necessary for a ballistic expert to visit the scene and adduce evidence, was it not necessary to provide medical evidence to show that the bullet exited from Evolve's body and landed on the wall?" posed the Magistrate.
The ballistic officer and the eight prosecution witnesses testified in the case and said he could not tell whether the bullet head and cartridges were from Babus's gun.
He said there were many guns that could use a 9 by 19mm ammunition and that there was a possibility of other firearms being the same.
The officer in his evidence during the hearing of the case said he couldn't conclude that Babu's gun was the one that fired the recovered bullet and head and cartridge.
"Having evaluated the evidence in court. I find that the prosecution has failed to prove the case beyond reasonable doubt," said the Magistrate.
