It was supposed to be a deal too good to resist. In October 2009, Clement Munyao’s friend was in urgent need of money and offered a mobile phone in return.
Munyao bought the phone and, a few days after using it, pawned it off as collateral for a loan from another friend.
“It was a Nokia phone; red in colour,” he recalls.
Four years later, these simple and supposedly innocent transactions would earn Munyao a 30-year jail sentence for the murder of Mr Moses Gituma, a senior official at the Central Bank of Kenya. Munyao was sentenced along with five others.
On appeal, three of the accused were set free but the rest, including Munyao and Janet Karamana (wife of the deceased), were sentenced to hang on December 15, last year.
Karamana was accused of hiring hitmen to kill her husband at Nairobi’s Garden Estate, which investigators linked to Sh45 million benefits from the CBK, payable to the next of kin.
This week, Munyao told the Sunday Nation from behind bars in Kamiti Maximum Security Prison that he was not involved in the murder and had never met Karamana.
The courts were, however, not convinced by his defence.
His connection to the murder? A phone stolen from the crime scene that was traced to him, yet he could not lead the police to the person who sold it to him.
Our inquiries reveal that Munyao is among scores of Kenyans whose handling of mobile phones from dubious sources has turned into a curse.
“One month after I got the phone and gave it away, I started receiving calls from unknown people who would hang up every time I picked. Little did I know they were CID officers (now Directorate of Criminal Investigation) who were trailing me,” says Munyao, who is now 60.
When he was eventually arrested, he was told about the robbery and the murder on Thika Road where the phone he had handled was stolen.
“They asked me if I knew Virginia Mutheu and Justus Mutinda,” he said in reference to two other suspects.
NO WAY OUT
During the hearing, the prosecution called 21 witnesses, among them Beth Wairimu, who testified that on the night of October 23, 2009, as she was watching television in Gituma’s house, four masked men in the company of Karamana forced their way into the living room and attacked them.
During the incident, she told the court, her red Nokia 1208 was stolen.
It was this phone that the police would track to Mutinda a week later with the help of mobile service provider Safaricom.
“On interrogation, Mutinda said the phone had been pledged to him by Virginia Mutheu Nzomo. He was ready to identify Virginia. On arrest, Virginia claimed the said phone had been pledged to her by Clement Munyao,” the police told the court.
“Munyao claimed he bought the cell-phone from a shamba boy at Gigiri, Nairobi. When taken to Gigiri, he could not identify the seller,” the court was told.
None of the witnesses said they saw Munyao at the scene of crime, but while issuing his ruling on the case, Justice Nicholas Ombija said there was circumstantial evidence to prove the case.
“As to how he obtained the cell-phone, Nokia 1208, is a fact within his special knowledge. He has not offered a plausible explanation of how he came by it. It is a burden put squarely on him. This places him at the scene of crime,” the judge said.
“The doctrine of recent possession says that if the accused person is in possession of property that has been recently stolen and gives no explanation as to how they came to have it, then the court will conclude that either they stole it, or received it knowing it was stolen,” says Mr Charles Mwalimu, a criminal lawyer.
In robbery with violence cases, or murder, says the lawyer, the challenge is for the prosecution to prove the accused’s presence at the time and place of the crime by providing circumstantial evidence.
Mr Mwalimu says that apart from being charged with murder in such instances, those found with stolen items are likely to be charged with robbery with violence and handling stolen property.
Handling stolen property attracts a minimum five years but the three charges combined attract a death sentence.
In the case of Dickson Mwaura, who is also serving a death sentence at Kamiti prison, five robbers armed with an AK-47 rifle attacked the family of Mr Samuel Muturi in Nkoroi, Ongata Rongai, on September 12, 2012, and stole items worth Sh1.2 million.
Mwaura was arrested on October 17 that year at Kware slums after Flying Squad investigators tracked a Nokia X3-02 stolen from the scene.
Just like Munyao, he denies being at the scene of crime. During the case — heard before then acting chief magistrate at Kibera law courts Daniel Ochenja — the witnesses gave contradictory testimony.
“Some guy I met at a joint where I usually went to watch football had a Nokia X3-02 that he was selling but I did not have enough money. So we agreed to trade in with my phone and I added him Sh1,500,” he told the Sunday Nation this week.
He alleged that he offered to take the police to the person who had sold the phone to him but they were not interested.
“On being taken to court, I was surprised that some witnesses claimed I was among the thugs who had robbed them,” he said.
It is difficult to ascertain whether he was at the scene of crime, but while issuing his ruling, the magistrate noted that Mwaura failed to account for a stolen phone and his defence that he bought it from somebody was an afterthought intended to win sympathy.
It was, therefore, safe to presume that he played a part in the robbery, the court said.
More than a decade after the mobile phone stopped being a privilege of the rich, device ownership has surged to an impressive 85 per cent of the population, according to the latest figures by the Communications Authority of Kenya (CA).
So spectacular has been this growth that a study released three weeks ago said more Kenyans have access to a mobile phone (98 per cent) compared with less than 20 per cent who have access to proper toilet facilities.
But with this rise, a black market industry where getting a stolen phone for a fraction of its value is as easy as taking a walk in the streets is also booming.
Using computer software, brokers first wipe out the phone’s data, reset its security codes and, in some instances, change the cover and sell it as brand new.
Technology experts, however, say tracking a stolen mobile phone is easy, even after all its data is wiped out.
“Each device has an IMEI (International Mobile Station Equipment Identity), which acts as a unique identifier for that device. No two devices will have the same (IMEI),” said On Phone group CEO Dennis Makori.
He added that everything in a mobile phone, including deleted messages, can be retrieved.
Mary Wanjiru and Faith Mugure learnt that the hard way. The Sunday Nation found the two at Nairobi’s Lang’ata Women’s Prison where they are serving various sentences — three years and nine years, respectively — for sending abusive text messages to men they had had romantic relationships with.
The text messages are said to be unprintable. But both women claim it was simply an angry exchange with a partner.
“You can’t just take a phone and insult someone without a good reason. They must have also done something wrong,” said Wanjiru, who is serving a three-year jail sentence.
Mugure, who is in for nine years after the court found her guilty of sending offensive messages to her ex-lover, George Waititu, said it was painful to note that people who had committed “harsher crimes like manslaughter” were serving shorter sentences.
POWER OF TECHNOLOGY
But legal experts explained that as long as a complainant had evidence that an offensive text message was sent to them, the accused could not defend themselves by claiming they too received offensive SMSs.
“Unless you have filed a complaint at a police station, it would be improper to bring the matter up when you have been put on the defence for improper use of a licensed device,” said lawyer Mwalimu.
In another intriguing example, next Wednesday the court in Thika will start hearing a case in which Delphine Nyaboke, 22, a house help, is accused alongside others of committing a violent robbery in which two people were shot in 2014.
The Sunday Nation is not at liberty to comment on the case as it is still in court, but among the accused is Anne Wambati, her former employer.
Police allegedly traced her through a SIM card she had registered under her name but which was in possession of Nyaboke, who had since moved to another employer when the said crime happened.
Those in the technology sector said the continued expansion of the mobile phone market could have led to an increase in such cases.
“Thieves will keep on stealing phones, and more people will keep finding themselves on the wrong side of the law,” one expert said.