The Director of Public Prosecutions (DPP) Keriako Tobiko has filed a notice of appeal against the acquittal of four men charged with the murder of 72 people in Mpeketoni, Lamu County.
Through Principal Prosecution Counsel Jami Yamina, the DPP said he intends to appeal against the whole judgment and to have the acquittal substituted with conviction of murder.
According to the notice, the DPP wants matatu driver Dyna Salim Suleiman, businessman Mahadi Swaleh Mahadi alias Jesus, Swaleh Shebe Auni and Joseph Chege sentenced to death.
Justice Martin Muya on Wednesday acquitted the four who were represented by lawyers Taib Ali Taiba, AB Olaba and Jared Magolo saying the prosecution failed to prove the cases against them beyond reasonable doubt.
Mr Suleiman and Mr Mahadi had been charged separately with the murder of 60 people while Mr Auni and Mr Chege had been charged with the murder of 12 people.
The judge said that there was total or near collapse of communication breakdown in the security organs when the raids took place.
“The police used their own handsets (mobile phones) at their own costs, there was lack of coordination with little or no command structure,” said Justice Muya.
The judge also noted that the county had few police vehicles which explain the poor response during and after the attacks.
Justice Muya said no attacker was arrested while noting that the attacks began at 8.45pm while police arrived at 4am according to a civilian witness.
The judge said Mr Suleiman was linked to the murders as a result of being a driver of the matatu that was used by one of the attackers.
“There is no evidence to the effect he was seen driving the matatu on the night of the attacks, the prosecution failed to call a doctor to testify whether there was irregularity in the accused being discharged from hospital,” said Justice Muya.
He also said that there was evidence that Mr Suleiman reported to police on how they were attacked.
“It is therefore not correct to state that the first accused (Suleiman) did not make an effort to report the matter,” said the judge.
Justice Muya described a prosecution witness who placed Mr Mahadi at the scene of the attack as not the kind the court could take seriously.
The judge said the witness said he was a Muslim but under cross examination he did not know the pillars of the Muslim faith and was not practicing Islam.
“This is not the kind of witness the court can take his evidence with seriousness it deserves,” said Justice Muya.
Justice Muya said defence witnesses’ evidence corroborated that of the data from Safaricom indicating that Mr Mahadi’s handset was being used in Malindi.
In their defence, Mr Mahadi and Suleiman said their prosecution was as a result of political pressure and that they had no idea of what was going on.
The raids took place between June 15 and 17, 2014 at Kaisari village and Mpeketoni Township.
Mr Auni and Mr Chege had been charged with the murder of Messrs Mzee Enock, Kombe Kiti, Enock Sila, Kenga Ngoma, Justin Chege, Abednego Kyalo, Raphael Muigai, Ken Mngara, Stephen Gichubi, Lawrance Kingori, John Karisa and Goyo Kenga.
The offences were alleged to have been committed on the night of July 5 and 6, 2014 in Hindi Location, Lamu.