The police informer, who investigators say played a key role in the killing of human rights lawyer Willie Kimani, his client and a taxi driver has been linked to four cigarette butts found at the scene of murder in Machakos.
An expert from the Government Chemist said after analysing the cigarette butts, he found that the DNA profile that was generated matched that of the suspect Peter Ngugi.
In his evidence, the doctor said the exhibit was taken to the laboratory by investigators on diverse dates between July and August in 2016.
The doctor’s name is withheld since the court allowed his application to have his identity concealed from the media.
A detective, sergeant Clement King’ori Mwangi, escorted Mr Ngugi and his four co-accused persons in the murder trial to the Government Chemist to have their DNA samples collected for referencing, Justice Jessie Lessit heard.
The other four suspects are administration police officers Senior Sergeant Fredrick Leliman, Sergeant Leonard Mwangi, Constable Silvia Wanjiku and Corporal Stephen Chebulet.
Asked if the due process was followed in collecting the samples from the suspects, the witness said when a client is escorted by police to the laboratory the experts do not seek consent from the subjects. He said the experts believe police must have already dealt with the issue.
“Cases involving police, an officer must escort the suspect and produce police exhibit memo form that is filled and signed,” said the witness while being cross-examined by Mr Ngugi’s lawyer Kelvin Michuki.
The lawyer asked the judge to expunge the DNA report from the court record and the doctor’s evidence on the same, saying it was inadmissible because there was no compliance with mandatory provisions of section 122 A and 122 C (1) of the penal code.
According to the lawyer, the procedure of connecting Mr Ngugi to the murder offence by use of DNA from his blood samples was procedurally and fatally flawed and should not be relied upon.
This is because Mr Ngugi never gave his consent in writing as required by the provision to section 122 C (1) of the Penal Code. Lawyer Michuki said looking at the document nothing shows on what authority were the samples taken from his client.
Section 122A(1) provides “A police officer of or above the rank of inspector may by order in writing require a person suspected of having committed a serious offence to undergo a DNA sampling procedure if there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect committed the alleged offence.”
“Failure to comply with that section makes the evidence inadmissible. We want the record expunged as it was illegally obtained. It is prejudicial to my client based on rights to a fair trial,” stated the lawyer.
However, the prosecution side led by Nicholas Mutuku, a deputy Director of Public Prosecutions, described the application as an ambush saying the lawyer had not made him aware of the application.
Hence, he said he needed time to prepare a response and study the legal citations made by the lawyer.
The doctor further testified that other three cigarette butts generated a mixed DNA profile, meaning they had been smoked and touched by several people.
He said it was difficult to discover the time the cigarette butts had stayed at the scene or elsewhere before been taken to the laboratory.
“The cigarette butts have cotton material which is good retainer of DNA profile,” stated the witness who said he has been in the sector for 17 years.
When asked by the lawyer if the evidential materials were degraded, the witness said his job was to generate the DNA profiles not the degradation of the material. He had been summoned by court for re-examination by Mr Michuki.
