The lawyers representing four policemen accused of killing two Indians and their local driver suffered a blow after a court dismissed their objection to a miscellaneous application filed by the officers’ employer seeking to detain them for 30 days as investigations continue, saying it is legally binding.
Kahawa Chief Magistrate Diana Mochache ruled that the Internal Affairs Unit has a legal duty to file or recommend the prosecution of its members and later forward the file to other government entities.
“On whether the National Police Service, under its Internal Affairs Unit, can recommend prosecution or conduct investigations on its members is rightly spelt out in law and they are well guided on how to pass the recommendation to the Office of the Director of Public Prosecutions (ODPP). So the miscellaneous application that the Internal Affairs Unit had filed in court on Monday is merited,” the magistrate said.
The defence team had in its preliminary objection opposed the application, informing the court that the Internal Affairs Unit lacks jurisdiction and that the mandate to recommend any prosecution lies with the ODPP and the Independent Policing Oversight Authority (IPOA), which looks into matters of police indiscipline and brutality.
The lawyers are representing Peter Muthee Gachiku, Francis Muendo Ndonye, John Mwangi Kamau, and Joseph Kamau Mbugua, whom the prosecution has accused of killing two Indians, Mohammed Said Sami and Zulfiqar Ahmed, and their local taxi driver, Nicodemus Mwania.
They appeared before Ms Mochache on Monday but did not take a plea because the Internal Affairs Unit had filed the miscellaneous application seeking to detain them for 30 days.
Dissatisfied with the ruling, lawyer Danstan Omari asked the court to grant the defence two days to enable them to file a replying affidavit at a higher court as they seek to overturn it.
''We are aggrieved by the ruling but we respect the court. However, we are going to appeal it at a higher court and we ask for two days so that we can file an application, which we strongly believe will overturn today’s ruling,’’ Mr Omari told the court.
Ms Mochache set the next session for Friday afternoon when both the prosecution and the defence will return for further directions based on the outcome of the appeal.
The defence has expressed concern that the prosecution will subject the accused to a DNA medical examination and their mobile phones to forensic examination without a court order.
On Monday, the investigating officer, Michael Kirui, attached to the National Police Service, through a sworn affidavit, told the court that the two Indians and their driver were marked men and it was just a matter of when they would be killed.
He did not explain the motive for the alleged murders but expounded on an alleged killer squad that was always ready to pull the trigger. He said it worked closely with other rogue elements within the Directorate of Criminal Investigations (DCI)
Documents filed at the Kahawa courts detail how the four police officers allegedly shared the roles of executing the two Indians and their driver. The Indians were said to have been in Kenya as part of a digital team that was working for President William Ruto in the run-up to the August 9 General Election.
''It is believed that the first respondent (Peter Muthee Gachiku) was the operations commander in the planning, overseeing the abduction of Mohammed Zaid Sami and Zulfiqar Ahmed Khan together with their taxi driver, Nicodemus Mwania Mwange,’’ Mr Kirui said.
He explained that preliminary investigations have shown that the second respondent (Francis Muendo Ndonye) was driving one of the vehicles that were used to abduct and transport the three to the place where they were killed, while the third respondent (John Mwangi Kamau) is alleged to be the one who drove the car that was carrying the three victims to the Aberdare forest, where they were executed.
The fourth accused, John Kamau Mbugua, is alleged to have been part of the killer squad.
Police said they relied on call data records, which revealed that the four accused were in contact communication with each other as they planned to execute the murders.
''Call data records indicate that the first respondent communicated with the teams before, during, and after the interception. He was also in communication late in the night with other persons of interest who are yet to be identified and is believed to have been briefing them on the operation,’’ said part of the miscellaneous application.
The prosecution said the officers’ phones had been seized but were yet to be subjected to forensic examination.
''Preliminary investigations, including their vehicles’ GPS/track logs and call data records, place the respondents, their vehicles, and other actors at the scene of the crime and the possible location where the bodies were dumped,’’ the application read.
