Court overturns Gachanja's conviction

The Court of Appeal has quashed the conviction of Elizabeth Gitiri Gachanja, wife of former Lands Commissioner Wilson Gachanja.

Her seven co-accused were, however, not spared the noose as the Appellate court dismissed their appeal on grounds that the trial court had found sufficient evidence linking them to the murder of a businessman and sentenced them to hang.

Ms Gachanja was sentenced to death in March 2003 alongside her sister-in-law Rose Njoki, step-brother Francis Karioko Muruatetu, David Karugu, Wilson Thirimbi, Anna Ngonyo, Stephen Kagia and Stephen Wambua for the murder of businessman Lawrence Magondu on February 4, 2000.

In their judgment, Appellate judges Justices Onyango Otieno, Emmanuel O’Kubasu and Philip Waki said the evidence linking Ms Gachanja was not sufficient to conclude that she participated in the murder.

She was convicted and sentenced to death for allegedly financing and planning the killing of the businessman, but the three-judge bench ruled that was hearsay because she did not give any evidence to police and that the trial court relied on the confession of others.

“All the evidence was circumstantial that she withdrew money from her account to give to her sister-in-law and step-brother. But she did that as a sister would do to help her siblings,” said Justice Otieno who read the judgment on behalf of Justices O’Kubasu and Waki.

The judges dismissed a confession by Ms Njoki and Mr Muruatetu that they were paid solely for the purpose, saying a statement which is not a personal confession is only binding to the confessor and not the accused.

“The evidence of Ms Njoki and Mr Muruatetu could not be relied upon as the trial court found they contradicted each other, and it is evident they could have lied about their sister,” said Justice Otieno.

He said the judges concurred with Ms Gachanja that she had been giving her sister-in-law money to support her businesses, and that there was no evidence the money she withdrew from her children’s account was meant to eliminate the deceased.

“The appellant’s conviction was set up on a conspiracy theory which could not stand at the trial court. We can’t find tangible evidence to say she financed the killing, hence the bench has allowed her appeal to stand, quashed the conviction and set her free forthwith,” ruled the three member bench.

In dismissing the appeal of her co-accused, Justice Otieno said that although the bench agreed Ms Njoki and Mr Muruatetu were not at the scene of killing, they were the architects of the murder plot and were rightly convicted.

For Mr Karugu, Mr Thirimbi, Ms Ngonyo, Mr Kagia and Mr Wambua, the judges said they were the last people seen with the deceased alive before he was found murdered, adding that it was enough evidence to point fingers at them.

Justice Otieno said that the judges agreed with the witness who positively identified them at a police parade, dismissing claims that the identification was not done in accordance with the law.

“The crime was committed in broad daylight in Kitengela and the deceased driver testified that he talked to the five appellants at different turns. This rules out a mistaken identity,” said Justice Otieno.

The judges dismissed their submission that the trial judge did not sign his judgment, that the evidence against them did not meet the standard of law, that they were tortured and forced to sign documents and that their defences at the trial court were not properly considered.