BY SAM ALFAN.
Director of Public Prosecution Noordin Haji has suffered a blow after his attempts to charge seven people with attempted murder was rejected by the Court of Appeal.
The seven had initially been charged with murder but were acquitted only for the DPP to prefer charges of attempted murder.
Court of Appeal judges Wanjiru Karanja, Asike Mukhandia and Agnes Murgor faulted the DPP saying he was litigating in piecemeal and in a manner which was apparently meant to frustrate the seven persons.
Nicolas Ngetich, Johnstone Sigei, Stephen Mwanzia ,Musana Ole Mbukoi alias Sananga ,Edda Wanjiri Mbiyu and John Kiragu Macharia had initially been charged with the murder of land activist Moses Ole Mpoe and Parsaaiya Ole Kitu at Solio junction along the Nakuru-Eldoret highway.
High Court Hellen Omondi acquitted them of charges saying the evidence was insufficient but another judge- Maureen Odero ruled that they should be charged with attempted murder prompting the appeal.
But the court of appeal judges disagreed with the High Court decision and said subjecting the seven to another criminal trial where it is evident that there is no “snowball’s chance in hell” that a conviction will result, is nothing short of abuse of court process.
“The upshot of this assessment is that the appeal succeeds in its entirety. We allow it with the result that the impugned Ruling dated 7th November, 2016 is hereby set aside and in lieu thereof we order that the charges and proceedings in Criminal Case No. 287 of 2016 against all the appellants pending before the Chief magistrate Nakuru court be and are hereby quashed,” ruled the appellate judges.
The seven had denied the charges of murdering the two on December 3, 2010 at the Soilo junction along Nakuru – Kisumu Highway.
In the incident, gunmen riding a motor cycle shot at motor vehicle registration No. KBK 451 causing fatal injuries to two passengers in the vehicle and seriously injured a third passenger.
The seven were arrested and charged with the murder and two years into the case, the DPP preferred a charge of attempted murder against them before the chief magistrate’s court.
This elicited a protest by the seven citing double jeopardy and violation of their constitutional rights.
In response to the said protest which was fully canvassed before the High Court, the Judge directed that the charge before the Chief Magistrate be held in abeyance pending the determination of the murder trial before the High Court.
They were later acquitted of the murder charges, and there may have been some expectation on their part that the charge before the chief magistrate would crumble.
But the DPP decided to proceed with the charge of attempted murder against them.
Through lawyers Harrison Kinyanjui and senior counsel Paul Muite, the seven moved to the High Court seeking to quash the charges before the lower court arguing that they had been acquitted by the High Court over the same incident.
They argued that the same witnesses were set to testify and the trial therefore, amounted to double jeopardy and an abuse of the court process.
Justice Odero, however, ruled that the seven could not rely on the double jeopardy rule adding that the victims in both crimes were different and the charges were separate and distinct.
The judge said the fact that the offences occurred in the same transaction was not a bar to the second charge in the lower court as directed that the trial before the chief magistrate do proceed to its logical conclusion.
The seven then moved to the Court of appeal as Kinyanjui argued that the Judge contradicted herself when she held that although the same evidence and the same transaction was evident in the two proceedings, she wrongly held that attempted murder constituted a ‘separate and distinct offence’ from murder viewed from the same facts, same evidence and the same witnesses such as would be tried separately, and thereby wrongly dismissed the appellants’ plea for a finding on the violation of Article 50(2)(a) of the Constitution.
