Two watchmen win Sh4m pay for wrongful detention

The State will now be required to pay Sh4 million as compensation to two watchmen who were wrongfully arrested, charged and jailed for robbery with violence.

In his verdict, High Court Judge John Mativo ordered the Director of Public Prosecutions (DPP) and the Inspector-General of Police to compensate John Atelu and Collins Ouma.

The judge ruled that the two faced prosecution with no factual basis and that the police maliciously abused their powers on them as well as the DPP by having them sent to prison.

“I find that the two are entitled to an award of damages. I find that an award of a global sum of Sh2,000,000 each would be reasonable as compensation for violation of their rights,” ruled Justice Mativo.

The judge said he had considered the nature of violations of constitutional rights, the legal principles, the agony the two were subjected to with the criminal proceedings, the period they had been held in custody, the length of their trial as well as the genuine fear of the possibility of being sentenced to death if convicted before granting the award.

ROBBED A POLICE OFFICER

“A declaration be and is hereby issued that the police and the DPP were under a legal duty to disclose to the accused persons all the prosecution evidence at the earliest opportunity and failure to do so amounted to abuse of law as well as violation of their right,” Justice Mativo ruled.

The two found themselves in the corridors of justice after they were accused of robbing a police officer of a pocket radio and mobile phone four years ago.

The policeman was robbed along Moi Avenue after leaving a bar. But he returned to the bar later with his colleagues and accused the two watchmen who guarded the bar as well as a nearby building of the alleged theft.

After being charged in court, they could not be released on bond since the court set the fees at Sh1million, an amount none of them could afford.

Mr Atelu was freed after spending nearly four months in custody while Mr Ouma until December 2014, about two years after being arraigned in court in January 2013.

CULPRIT FOUND

However the two would not have stayed longer in custody if the prosecution would have disclosed to the court and to them at an early stage that the real culprit had been found.

They therefore faulted the DPP for having them charged with a serious offence yet recorded statements with the police as at January 26, 2013 indicated who the real culprits were.

They also faulted the prosecution of wilfully withholding that information from them until during cross examination of the statement which had not been provided to them before the trial kicked off.

In their suit in which they protested against the violation of their rights, they sued the Attorney General, the IG the DPP and two police officers.

The AG told court that there were no violation in their case while the DPP insisted that their trial was fair.

FAILED

But the judge affirmed that the DPP and the police failed in their duty.

“The decision whether or not to prosecute is very important, it can be very upsetting if a person is prosecuted even if later found not guilty. However a decision not to prosecute can cause great stress and upset the victim of the crime,” the judge said.

He added: “Therefore the DPP must consider whether or not to prosecute, the prosecutor should remain fiercely independent, fair and courageous. The responsibilities to the DPP and the police demand nothing less.”