The attempted murder case against Embakasi East MP Paul Ongili, alias Babu Owino, will proceed as a magistrate's court has declined the victim's request to withdraw it.
Felix Orinda, popularly known as DJ Evolve, wanted to withdraw the criminal case on the grounds that he and the lawmaker were good friends before the January 2020 shooting that resulted in the case.
In a letter dated September 21, 2020, addressed to the Director of Public Prosecutions (DPP) and the Court’s Executive Officer, the victim and his family indicated that the court case was affecting his healing process due to divided attention.
But Senior Principal Magistrate Bernard Ochoi declined the request, saying the application did not meet the threshold for withdrawing a criminal case.
Mr Ochoi further said the unconditional withdrawal of the case was inappropriate under the circumstances because the parties had not disclosed what the MP was offering the victim or his family.
While stating that the window of engagements (out-of-court settlement) between the parties was still open, the magistrate said they must openly inform the court of the details.
When the withdrawal matter came up in court in September last year, prosecutors Jacinta Nyamosi and Joseph Riungu asked to be granted more time to consider the nature of the letter written by the victim, who is the principal witness in the case.
The MP is accused of attempting to murder the DJ by shooting him in the neck at B Club along Galana Road in Nairobi on January 17, 2020. He faces a second charge of behaving in a disorderly manner while carrying a firearm, by firing one bullet with the intent to shoot the DJ.
The prosecutors told the court that they needed time to find out the victim’s motivation for seeking the withdrawal and whether the Alternative Dispute Resolution (ADR) mechanism was appropriate, considering the nature of the offence.
The letter on the intention to withdraw was accompanied by an instruction note bearing a thumb print against the name Felix Orinda. It also had an affidavit sworn by Mr Orinda by use of the thumb print.
It was signed by the victim’s parents, Johannes Orongo Odhiambo and Mary Adhiambo Hongo.
According to the letter, the family had been in intense deliberations on the need to allow the complainant to concentrate on his treatment rather than the pending criminal case against the MP.
It stated that the family had repeatedly been in communication with the complainant, who had "categorically expressed his very considered position that he did not want the case to continue".
Through the letter, the victim and family’s lawyers told the magistrate that his wishes should be respected.
They added that an out-of-court settlement is allowed in law for any offence and that its nature as a matter of public interest does not preclude it from being withdrawable for an out-of-court settlement as all cases are equal before the law.
However, the prosecutors said they wished not to respond to the victim’s intention immediately since they needed to have a better understanding of what informed his decision, considering it was a case of public interest.
The prosecutors said they were aware the victim was not physically and mentally capable at the moment and that they therefore needed to get the medical assessment report to even assess his ability to give instructions.
Magistrate Ochoi, in his ruling, said the law empowers the DPP to discontinue any criminal proceedings at any stage before a judgment is given.
However, Article 157 of the Constitution enjoins the DPP to exercise the powers with due regard to public interest, the interest for administration of justice and the need to prevent abuse of the legal process.
