The High Court has upheld the decision by the Director of Public Prosecutions (DPP) to charge seven individuals linked to the murder of former Kabete MP George Muchai in a separate case involving armed robbery.
Justice Lawrence Mugambi dismissed a petition filed by the suspects who claimed the State had subjected them to double jeopardy by initiating two criminal cases arising from the same incident and involving the same witnesses.
They sought an order compelling the DPP to drop the murder charges, arguing that the witnesses who had already testified in the robbery case at the Chief Magistrate's Court had also testified in the murder trial at the High Court. The suspects argued that in both cases, the prosecution relied on the same witnesses, exhibits, police file and investigation officers.
However, Justice Mugambi rejected the petition finding that the two offences were distinct and that the suspects’ right to a fair trial had not been violated.
Double jeopardy is a legal principle that prohibits an individual from being punished twice for the same crime.
“A strict application of the principle of double jeopardy cannot be invoked in the circumstances of this case. Double jeopardy can only arise where there has been a complete trial on the merits by a competent court and a verdict of acquittal or conviction has been entered for the same or substantially similar offence based on the same facts. That is not the case here,” said Justice Mugambi.
From left: Simon Gichamba, Margaret Njeri, Jane Wanjiru, Stephen Astiva Lipapo, Mustafa Kimani, Raphael Kimani Gachii and Erick Munyera Isabwa in a Nairobi court on March 13, 2015 when they were charged with murdering George Muchai. They will apply for bail on March 23, 2015. PHOTO | PAUL WAWERU |
The court considered an affidavit filed by Police Sergeant Moses Otiu who denied that the offences of murder and violent robbery stemmed from the same transaction on the night of February 6 and 7, 2015. Mr Otiu stated that investigations revealed the robbery offences took place at different locations at different times and involved different victims.
He said the first robbery occurred in the Kangemi area along Waiyaki Way where the victim was Michael Ngatia, while the second happened in Wangige, Kikuyu, with complainants Gladys Waithira and Irene Wambui.
These crimes were reported at Kabete and Tigoni Police Stations, respectively.
Regarding the murder charge, Mr Otiu said the incident occurred along the Kenyatta Avenue–Uhuru Highway roundabout in Nairobi at around 2.51 am where MP Muchai was fatally shot along with his two bodyguards and driver.
The investigations also revealed that a vehicle stolen from robbery victim Gladys Waithira was used in the murder, making both her and Irene Wambui key prosecution witnesses in the murder case.
“The elements of robbery with violence are distinct from those of murder, as is the evidence required to prove them. Consequently, even if the petitioners were acquitted of murder by the High Court, a plea of double jeopardy cannot be raised in the robbery trial before the Chief Magistrate’s Court, since the offences are different,” the judge ruled.
The suspects are Aloise Onyango, Erick Munyera Isabwa, Raphael Kimani Gachie, Mustafa Kimani Anyoni, Stephen Ashitiva Lipopo, Jane Wanjiku Kamau, Margaret Njeri Waciuri and Solomon Wambugu Gichamba.
