A Nyeri police officer who killed a man during an arrest seven years ago has been found guilty of manslaughter by the High Court.
During a court session on Thursday, November 30, Justice Martin Muya convicted Police Constable Chibungu Sanga of killing 33-year-old Gregory Kanyi in Mukurweini on the night of 8 March 2015.
The judge found that the prosecution had proved beyond reasonable doubt that the accused used excessive force during the arrest and that the police action was unlawful.
However, he reduced the charge from murder to manslaughter, finding that the prosecution had not proved all the ingredients of a murder charge.
The case shows that on the fateful day, Chibungu, who was formerly attached to Mukurweini Police Station, arrived at the deceased's home around midnight, accompanied by three other officers, following a complaint of assault.
The deceased, a stonemason, had allegedly been involved in a physical altercation with another officer, Constable Huja Macharia, at a local bar in Mukurweini town two weeks earlier. Constable Macharia was one of the officers who accompanied the accused to assist in their arrest.
When they reached the house, they surrounded it to prevent the deceased from escaping. Kanyi opened the door for the police officers.
According to the accused police officer, Kanyi came out with a machete and jumped behind him, injuring his hand.
Officer Sanga said he was the only armed police officer at the scene. He told the court that he first fired into the air before shooting Kanyi in the chest, killing him instantly.
When the accused officer appeared in court to plead his case, he admitted shooting Kanyi, but claimed it was in self-defence.
However, in his ruling, Judge Muya rejected the accused's claim of self-defence, stating that he had failed to prove the allegation beyond reasonable doubt.
The judge questioned the presence of a machete at the scene of the crime, saying that the court was not satisfied with its existence.
He cited that family members who were in the house on the fateful day and a crime scene officer said they did not see a machete.
According to the judge, the machete was mentioned in court by the then Mukurweini Ward Police Commander Nahashon Kipsoi, who was the investigating officer.
Mr Kipsoi said the machete was recovered by the accused the following day just 30 metres from the body near a cowshed on the deceased's compound.
He said it was the accused who handed it to him. However, photographs of the crime scene did not show a machete.
"If that was the case, the investigating officer should have protected the crime scene and handed over the weapon to the crime scene investigators," the judge said.
Justice Muya said there were also contradictions about the nature of the machete; while some of the witnesses said it had a wooden handle, others told the court it was made of a black tyre handle.
In the judgment, the court also criticised the police officer's claim of self-defence, saying that the accused's action of shooting the deceased in the chest was unjustified.
"Even if there was resistance on the part of the deceased, I am not satisfied that the force used to shoot the deceased at close range was proportionate to the objective of arresting him for assault," he said.
Justice Muya also found that the matter was not urgent enough to require four police officers to make the midnight arrest.
According to the judge, the deceased was not a hardcore criminal and lived close to the police station.
In his ruling, however, Justice Muya noted that the murder charge against the accused could not stand because the prosecution had failed to prove that the police officer committed the crime with malice - a key element in a murder charge.
He said that when the officers left the police station for the deceased's home, they intended to make an arrest, not to kill.
After handing down the verdict, Magistrate Muya ordered the accused to appear in court on 14 December for sentencing and for a Victim Impact Assessment Report to be issued by the probation department.
The accused's lawyer, Emmanuel Mwagambo, asked the court to release the officer on bail pending his sentencing, pointing out that he was still in the police service.
"He has also dutifully attended all court sessions in this matter for the past five years," lawyer Mwagambo said.
But the prosecution challenged the application, saying the defendant's status had changed to that of a convict.
While allowing the prosecution's defence, Justice Muya ordered that the accused be remanded in custody at King'og'o GK Prison.
The matter was initially investigated by the police before being taken up by the Independent Policing Oversight Authority following complaints from the deceased's family.
