Willie Kimani Murder: State To Pay Man Ksh 3.4m For Malicious Prosecution
In malicious prosecution, the High Court has ordered the government to pay Sh3.4 million to a Syokimau resident who was arrested and charged alongside Josephat Mwenda, who was cruelly murdered by police officers in June 2016.
Former officer Fredrick Leliman fabricated the charges against Josephat Kibagendi Mogaka to obscure the gunshot death of Mr. Mwenda, according to the ruling of Justice Francis Olel.
In an attempt to apprehend boda boda operators in Syokimau, Leliman inadvertently discharged his firearm and struck Mwenda in the arm, leading to the apprehension of Mr. Mogaka, Samuel Ondicho, and John Waswa.
The judge stated that police officers are expected to conduct investigations in a professional and unbiased manner.
“The uncontroverted evidence herein indicates otherwise as the petitioner and other co-accused were rounded up and eventually charged to cover up for the shooting of Josephat Mwenda,” the judge said.
Mr. Mogaka was granted witness protection after the June 23, 2016 homicides of Mwenda, taxi driver Joseph Muiruri, and International Justice Mission attorney Willie Kimani.
While departing the Mavoko law courts for the hearing Mwenda had filed against Leliman in the aftermath of the shooting, all three were abducted.
According to the evidence presented in court, Mr. Mogaka and his accomplices were formally accused of wagering and resisting arrest. Additionally, Mwenda was fined an additional charge of possessing bhang.
In February, Leliman received a death sentence, whereas Peter Ngugi, a police informant, Stephen Cheburet, and Sylvia Wanjiku, all of whom were erstwhile colleagues of his, were given terms of imprisonment ranging from 20 to 30 years.
Mr. Mogaka initiated legal proceedings against the Attorney General, Inspector General of Police, and Director of Public Prosecutions (DPP), alleging that the allegations levied against him were unfounded facts and an improper use of prosecutorial authority. As alleged, he denied engaging in illegal gambling or resisting arrest.
According to Mr. Mogaka, his arrest was a pretense to cover up the murder, and the other suspects were held in custody for three days, charged, and subsequently released upon posting cash bail of Sh5,000 each. They were detained between April 10 and April 12, 2015.
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He apprised the court that the prosecution consistently postponed the case until June 28, 2018, when they were discharged by the court by section 210 of the criminal procedure code.
Mr. Mogaka asserted that the allegation against him was not founded on factual evidence, but rather on the ulterior motives of Mlolongo police station officers.
He argued that the police chief was responsible for the conduct of officers at the Mlolongo police station, given that they were expected to act professionally and not be motivated by malice. They were liberated after the absence of every single witness, who was a police officer and was expected to provide testimony.
In opposition to the case, the Attorney General contended that Mr. Mogaka had failed to provide evidence of a violation of his fundamental rights and freedoms and that the allegations were not substantiated.
Justice Olel stated that the prosecution of Mr. Mogaka was initiated without conducting adequate investigations, which led to the conclusion that it was motivated by malice and ulterior motives, as the charges were fabricated.
The judge stated that the DPP had the authority to evaluate the case and dismiss the charges, but in violation of his rights, he allowed the case to proceed.
“It was an undisputed fact that the 3rd respondent (DPP) became aware that the charges against the petitioner and his co-accused persons were tramped up upon the death of the 1st accused Josephat Mwathi Mwenda, who was murdered by PW1, senior sergeant Fredrick Leliman,” the judge said.
Justice Olel stated that the DPP should have acted swiftly following the discovery of Leliman and his colleagues’ conspiracy to prevent further injustices being inflicted upon the accused.
“As a result of the negligent action of the 2nd and 3rd respondents’ (IG and DPP) agents, the petitioner- an innocent man- continued to have a criminal case hanging over his head more than 39 months, causing him great psychological impact,” the judge said.
The court added that Mr. Mogaka was detained for three days without being promptly informed of the grounds for his detention, as was required by law. The judge ruled that his rights were violated when the reasons for his detention were not disclosed.
Willie Kimani Murder: State To Pay Man Ksh 3.4m For Malicious Prosecution
