Inside Story: Why would Murder Charge of man take 10 years and later acquitted?

Mr Francis Mbuga Weru, a matatu driver was acquitted of the murder charge by Justice Jairus Ngaah for lack of enough evidence. The police had charged Mr Weru alongside several other suspects with the killing a patient David Maina Wangeci on December 1, 2008. Wangeci was in an ICU ward following an attack by gunmen at his home in Mweiga in Kieni Constituency. How the daring gunmen accessed the hospital’s ICU, which is under 24-hour surveillance, fired gunshots and left without being noticed, remains a puzzle to date. Justice Ngaah acquitted Mr Weru, ruling that apart from police failing to get the real killer, the State also failed to table enough evidence to convict the matatu driver.

In his defence, Mr Weru testified on oath that he was a matatu driver plying Nyeri-Nyahururu Road. On November 28, 2008, he said he went to work as usual and returned home at about 8p.m. About half an hour later, some people knocked at his door. Mr Weru told the court he was alone in the house as his wife had travelled to her parent’s home.  He peeped through the window and recognised some of the people outside, whom he identified Gichuki, Elijah, Githiri and Mambo. He started shouting and one of his brothers, Julius Waithaka, came out of his house.

The intruders fired in the air and Mr Weru escaped from his house but as he was running away he fell down. He said the assailants shot him on the left shoulder and at the back and was also cut on the head. An hour and half later, Mr Weru told the court he tried crawling to  his brother’s house but his other sibling James Maina had been informed and he came with detectives from Othaya Police Station.  He said they are the ones who took him to hospital. Mr Weru told the court that amongst the people who had invaded his house, Mambo was later shot and killed by police, while Gichuki and Elijah were sentenced to death for robbery with violence. Githiri was lynched by members of the public, Weru said. After Mr Weru was discharged from hospital, the police came for him and informed him that his life was in danger.

According to him, he was later ‘arrested’ and detained at Nyeri Police Station for his own security only for the police to turn around and charge him with the offence of attempted murder of the ICU patient. The charge was later substituted with that of murder. While denying knowing the deceased, Mr Weru produced a discharge summary showing that he had been admitted in hospital on November 29 and discharged on December 1, 2008. After fighting the murder charges for ten years, Mr Weru has been acquitted by the court for lack of enough evidence.Considering the manner in which the murder was executed, the judge said it was premeditated and intentional.

“No evidence was adduced linking the accused with the murder. The two nurses who were seated outside the ICU where the deceased was admitted when he was attacked did not have the opportunity to see the actual attacker. Neither could they remember whether Mr Weru was the person who confronted them,” said Justice Ngaah. The judge noted that the nurses never suggested in their evidence that they could possibly give description of the attacker at least to the extent that they would pick him out if they saw him again. “In any event, as the prosecution case stands, no efforts were made for an identification parade from which the two witnesses could pick out the deceased assailant’s accomplice assuming that they were capable of identifying him in such a parade. As a matter of fact, based on the material before me, the case was never investigated,” Justice Ngaah ruled.

The judge wondered what informed the decision of the police to charge Mr Weru with Wangeci’s murder. Justice Ngaah further noted that the case commenced way back on February 12, 2009 when the accused took his plea while hearing commenced more than one year later on May 25, 2010 when the first three prosecution witnesses testified. It was not heard again until June 29, 2017, more than seven years later when the pathologist was heard. In between May 2010 and June 2017, the hearing was adjourned on numerous occasions mainly for the reason that the state witnesses were not available.

At some stage, the State attempted to enter a nolle prosequi to abandon the case but the judge rejected the move. Among the reasons the judge gave for stopping the prosecution from abandoning the case were that the witnesses whom the State intended to call were civil servants, two doctors and two police officers who have a civic duty to testify.

“Even then, despite several applications for adjournment by the state, it was not demonstrated that any efforts had been made to secure their (witnesses’) attendance. It is after my ruling that only one more prosecution witness testified and produced the post-mortem report. The State had to close its case at that point,” said the judge. He added: “I need not speculate or interrogate why the state could not avail all its witnesses safe to say that its case against the accused was not proved beyond reasonable doubt.”