Murder tapes: DPP's order that could amount to miscarriage of justice in Whitney Atieno death

The move marks a significant shift in the direction of the case, as initially the DPP had found sufficient grounds to charge Chief Inspector Erick Mukone Wekesa, who was then the Bondeni Officer Commanding Station (OCS) with murder and grievous harm.

However, before charges could be formally instituted and after months of mentions of the matter in court, DPP Renson Ingonga opted to recall the file for review.

The DPP recommended a public inquest into the case, saying he, “notes that death and serious injury were occasioned in the context of a lawful police operation within the locus in quo. Whether or not Eric Mukhone Wekesa’s discharge of fire was reckless, injuries on the two victims appear to be purely accidental.”

In the letter seen by Murder Tapes, Mr Ingonga expressed regret over the pain caused to the affected families, acknowledging the grief suffered by relatives of Ms Atieno following her killing.

The prosecution office also conveyed sympathy to Ms Waithera, who survived the incident but has since endured prolonged emotional and physical trauma.

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However, Mr Ingonga declined to pursue criminal charges. He says, “the ingredients of the proposed charge are not clearly borne out of the suspect’s action.” Thus, “the DPP recommends for closure of the matter by way of a public inquest as provided for under section 385 of the Criminal Procedure Code.”

It is the wording of the letter and the DPP’s recommendations that have caused more pain for the families in Nakuru and jitters in the legal fraternity.

It was clear that the DPP did not cite any gaps in the investigation conducted by IPOA and never recommended for further areas to be covered. To the contrary, the DPP - in the letter to IPOA- did not deny that the OCS fired his gun and shot the girls; but says it was all an accident.

City lawyer Isabella Obara, who has built a career around litigating human rights violations, regrets that, “in this incident the DPP has become the trial court, usurping the powers of a competent court that should be the one to reach that decision. There are forensic questions that the DPP may not be able to answer.”

According to an officer at the DPP, the file was forwarded back to Nakuru last week following a Nation story with the new instruction to launch an inquest.

The file was dispatched on Friday from headquarters to Nakuru and is expected to land in court.

Mr Edward Mbanya, an advocate at Amnesty International Kenya told the Nation that, “an inquest is basically an investigation it allows the court to hear testimonies from witnesses, examine evidence, and determine who, if anyone, should be held criminally responsible for the teenager’s death.”

Mr Mbanya argues that inquests have been misused by police officers and the ODPP to deny families justice, “it will take about six to seven years on average for an inquest to end; and even after that in most cases no one will be found culpable, and if anyone is found liable for prosecution they are well prepared because they already know all the witnesses in the matter and what they will say.”

“Even if the court found anyone criminally liable, only the DPP has the mandate and decision to charge, so it is not automatic that once an inquest finds you liable, you will be prosecuted. It is worse that there is no timeframe for the ODPP to charge,” Ms Obara added.

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Ms Obara’s sentiment is corroborated by, among others, the inquest of republic versus Chief Inspector Zebedeo Maina, Chief Inspector Peter Muthee, Chief Inspector John Njoroge and Sergeant Victor Mbogo.

The officers were found culpable of executing five innocent people in Malindi on November 27, 2007.

A 2011 inquest recommended their prosecution, however, fourteen years after the judgment the ODPP has never opened charges against these former Special crimes Prevention Unit officers.

Chief Inspector Zebedeo Maina and Chief Inspector John Njoroge have since died. Maina having been killed by fellow police officers in a botched police operation in Kitui.

Chief Inspector Peter Muthee is currently facing trial for the murder of president William Ruto’s Indian campaign strategists.

Seargeant Victor Mbogo is currently working at parliament police, and the ODPP is still a constitutional office aware of the inquest decision.

The ODPP appears to be well aware that an inquest will completely collapse the quest for justice in the case of Whitney Atieno, this is noted especially in the wording of the letter where Mr Renson Ingonga says, “I recommend closure if the file by way of an inquest.”

“We were surprised when the file was later recalled to the headquarters despite being mentioned in court for a very long time with the two charges only for the DPP to recommend an inquest. The officer who shot the two girls is known, the gun that was used is with us, the postmortem examination has determined the cause of death and even the police have admitted liability. We therefore wonder why they want to take the family into the whole process again. The three years they have waited for justice is just enough for the still grieving family,” said an official at the ODPP

An Independent Police Oversight Authority (IPOA) officer who spoke on condition of anonymity intimated to Nation that after completing their investigation late 2023, they forwarded their file to the ODPP with recommendation that Mukone be charged with manslaughter and causing grievous harm.

Also Read: Nakuru killing - 'My daughter was not part of the dreaded criminal gang'

The officer said that however, in their file the ODPP later recommended Mukone be charged with murder and causing grievous harm at the Nakuru Law court but the matter never kicked off.

On October 3, 2024, the DPP recommended that Chief Inspector Wekesa be charged with murder but on January 29,2025, the DPP recalled the file for review.

A court file at the Nakuru High court showed that state counsels prayed for summons against the officer for plea taking on October 8, 2024.

The court issued summons to the OCS for the purpose of plea taking on October 16,2024.

However, during a mention on October 16,2024 the accused was missing but his advocate was present in court.

The advocate told the court that his client did not appear despite the summons since he was unwell and was to undergo a heart surgery and prayed for a defer date.

The advocate further told the court that the doctor told him that the operation was a major one and recommended he be given at least three months before he could be able to appear in court.

The advocate pleaded for a date in January 2025 where the court slated the mention for January 2025 after the prosecution confirmed the receipts of the document from the doctor.

However, on January 29, the court was told that the DPP had recalled the file for review and requested for a further mention.

Atieno, a Form four student at Nakuru Central Secondary School and Waithera, who attended nearby Flamingo Secondary School, had gone to a salon to braid their hair when they were shot.

Chief Inspector Erick Mukone Wekesa, who was then the Bondeni OCS, was leading a police operation in Lake View Estate to flush out suspected members of the Outlawed Confirm gang.

He allegedly shot Atieno, succumbing to her injuries at the Nakuru Teaching and Referral hospital while receiving treatment, while Waithera was left nursing serious injuries to her hand.

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The latest development comes after the ODPP reviewed the case file and recommended the opening of a judicial inquest to establish the exact circumstances under which Atieno lost her life.

The shooting sparked outrage and protest among residents and human rights activists, with some accusing police of acting recklessly and failing to protect innocent civilians.

An Autopsy that was conducted on the remains of Atieno at the Nakuru Teaching and Referral hospital mortuary on June 23,2022 revealed that he had a single gunshot to her chest.

Government Pathologist Dr Titus Ngulungu said in the Autopsy report that the bullet went through the front part of the abdomen and exited on the lower back.

He reported that the body had no other significant injuries, describing the morphology of the wound as that resulting from a close range discharge-estimated to be not more than 50 meters.

“As a result of my examination, I have formed the opinion that the cause of death was massive blood loss due to a single gunshot to the abdomen,” noted the pathologist.

Whitney was buried on July 2, 2022 in Ukwala Sub-County, Siaya County.

According to David Kuria, the representative of the Independent Medico-Legal Unit (IMLU), said that they are not satisfied and disappointed with the decision to open an inquest instead of charging Mukone in court.

He said that the decision to pursue an inquest has introduced a new legal battle and yet the culprit is well known, saying that inquest is often used in cases where the exact circumstances of death remain unclear.

According to Mr Kuria, initially, the recommendation to charge Mr Mukone with murder and causing grievous harm raised hopes among the family that the matter would proceed to trial and the officer responsible would face the full force of the law.

For the family, the inquest represents another chapter in a long journey marked by grief and determination.

“The matter has been mentioned in court more than five times. It is a surprise to us and we are unsatisfied with that decision. We feel like someone is trying to save the officer from being charged. Unfortunately, the independence of the institution meant to protect us is being taken away,” he said

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