On March 31, 2020, Victor Lubakaya Nganga received a phone call from a friend inviting him to meet at an entertainment joint within Bungoma Town. Unaware of the danger that lay ahead, he went.
Lubakaya, a Recce Squad officer who had just returned from a mission, left with his fiancée Lilian Nasimiyu on a motorbike. Upon arrival at Chebkube Market, they first stopped at a nearby salon where she intended to have her nails done.
While at the salon, his friend, a Bungoma County employee identified as Dan Pepela Lusanya, called again and asked Lubakaya to meet him near the Kenya Power building in Bungoma.
Lubakaya and Nasimiyu left the salon to meet Pepela at a wines and spirits shop adjacent to Kenya Power's offices. Pepela was not alone: he was accompanied by two friends whom he introduced as Keya from Busia and Otile Brown from Kisumu. The two claimed they were police officers.
Later, a shooting ensued that ended with Lubakaya shot 38 times. He died on the spot.
Victor Lubakaya Nganga, a GSU Recce Squad officer who was shot dead in 2020.
Photo credit: Nation Media Group
A police report would later emerge stating that a robbery with violence incident had been reported on March 30, 2020, at Namachanja Estate. Officers later traced a suspect who, with the assistance of members of the public, spotted him within the Kenya Power Bungoma compound in the company of two others.
The report stated that the officers had challenged them to stop; however, they defied the orders and allegedly opened fire, prompting police to return fire, fatally injuring one of them while two others managed to escape.
A search conducted on the Recce Squad officer, the police report states, led to recovery of a toy pistol, ATM and NHIF cards that identified the dead man as Lubakaya.
“Further, the slain gangster was positively identified by victims of the robbery...he was believed to have been leading a gang that had been terrorising members of the public in a series of robberies in Bungoma and Busia counties. The scene was processed and the body moved to Bungoma County Referral Hospital Mortuary,” read part of the police report.
A snapshot of the police report on the incident.
Photo credit: File
The story of the shootout and police report would later circulate online, prompting the Independent Policing Oversight Authority (IPOA) to launch its own investigation. Statements were recorded from key witnesses, bringing out sharply conflicting accounts from witnesses and police officers.
A snapshot of the crime scene following the shootout. Pictured is Victor Lubakaya Nganga's hand.
Photo credit: File
For instance, his fiancée Nasimiyu said the two men who had been introduced to them as police officers, Keya and Otile Brown, asked her to leave but she refused. She stated that after Pepela and the two men briefly left, Lubakaya went to look for Pepela, at which point the two officers confronted him and surrounded him while armed.
She insisted that Lubakaya was unarmed and had surrendered but was still shot dead. She fled the scene in fear and reported the incident at Bungoma Police Station under OB No. 51/01/04/2020.
Pepela, the friend who had invited Lubakaya out, told IPOA he organised the meeting and shared drinks with the officer and two men he believed to be his “crew.” He said the two men left earlier, claiming they were going to enforce curfew. But as they prepared to leave, Pepela heard gunshots and fled in panic. He insisted he did not witness the shooting, did not know who fired, and denied knowing the two men (Keya and Otile).
Senior Sergeant John Kipkurui Talam, who was in charge of the armoury at DCI Bungoma South, stated that between March 24 and 31 he issued firearms and ammunition to several officers including Joseph Nzioka (SCCIO), CPL Kipkirui Serem, PC Felix Mbuvi and PC George Wachira.
However, after the shooting incident, PC Wachira returned his AK-47 with eight rounds missing, indicating that PC Mbuvi had mistakenly taken his rifle and fired the rounds.
Talam said he received all firearms and secured them as exhibits, along with other items handed over by Inspector Mogere, the deputy OCS, which were later forwarded to the investigating officer.
Mr Nzioka said he led a team pursuing a robbery suspect linked to previous crimes, including a kidnapping. He claimed the suspect (later identified as Lubakaya) was tracked to the scene, refused orders to surrender, and a shootout ensued. He admitted firing two rounds to disperse civilians and said officers only realised afterward that the deceased was a police officer.
IPOA later observed inconsistencies in the account, noting that while Nzioka claimed a Tecno Spark mobile phone was recovered from the deceased, it was not listed in the official inventory of items recovered or handed over to the family.
The authority also noted that five witnesses, including two children, a bar owner, and two civilians, refused to record statements for fear of victimisation by the police.
A postmortem examination revealed that Lubakaya died from internal bleeding secondary to gunshot wounds. Three bullet heads were recovered from his body.
Ballistic analysis linked firearms issued to the officers to some of the recovered exhibits. However, one bullet head showed similar striation markings to test bullets fired by APC Jillo, though not sufficient for a conclusive match.
Nzioka’s firearm was not linked to any of the recovered exhibits, despite him admitting to firing two rounds. The recovered toy pistol was confirmed to be a plastic imitation incapable of firing.
Court: Close the murder file
IPOA recommended that Nzioka, IP Serem, CPL Serem, PC Mbuvi, PC Wachira, APC Jillo, and APC Etugu be charged with the murder of Lubakaya.
However, after the investigation by IPOA, the Office of the Director of Public Prosecutions (ODPP) recommended the matter be dispensed with by way of an inquest.
In June 2023, Senior Principal Magistrate Patrick Olengo ordered that the file be closed, with no criminal action taken against the officers, noting that based on the evidence, the court was unable to blame any of those who participated in the shooting.
In his ruling, SPM Olengo stated that the court had to consider two issues: first, which version of events was correct, and second, whether that version, if accepted, would lead to criminal liability against the officers.
He said that on the first issue, the court found that Lubakaya was innocent, although this was not clearly established, as the GSU officer’s family and Ms Nasimiyu blamed Pepela as the one who organised and lured him into a death trap.
According to SPM Olengo, what did not come out clearly was Pepela’s motive, as it was not established why he would have been after Lubakaya’s life, or whether there was any grudge between them or their families.
“Keya and Otile Brown were among the police officers who shot him dead. Of the officers whose names were given as those at the scene, who among them was Keya or Otile Brown? This court does not know who they are, and if it were to recommend charges against them, where would they be found? Nasimiyu and Pepela do not know them, where they live, or their official names. We do not know if they are among the officers treated as suspects,” he said.
The magistrate went on to say that the police version, that they had received information that those who kidnapped Niraj Khetia and demanded a ransom of Sh1 million and later robbed another person, had evidential backing, even if it was not true that the GSU officer was involved in the two incidents.
He noted that the officers present were aware of the risks they faced, given past incidents involving the individuals they were going to confront and the nature of the weapons they were likely to encounter.
“From what I have stated above, this court is not able, based on the evidence herein, to blame any of the officers. I order that this file be closed. However, any authority is at liberty to carry out further investigations should new or additional evidence emerge that may point to criminal culpability on the part of any person, including the suspects herein,” ruled SPM Olengo.
More questions than answers
Felix Ng’ang’a explains how his son Victor Lubakaya Ng’ang’a, who was shot 38 times by police officers on suspicion of being a robber on March 31, 2020.
Photo credit: Boniface Mwangi | Nation
For the family, the inquest left them with more questions than answers over their son’s cold-blooded murder.
His father, Felix Nganga, a teacher for the past twenty years, said that all officers admitted to having shot and killed his son on instructions from Mr Nzioka.
“We expected that Nzioka would come to court and at least explain why he ordered my son’s killing. He did not come, yet a verdict was reached without such a crucial witness. I want to declare that the judgment delivered was not balanced; it favoured one party,” he said.
