Guilty, but spared hangman's noose - Daily Nation

Guilty, but spared hangman's noose

Thursday May 7 2009

Tom Cholmondeley at the High Court in Nairobi where he was charged with manslaughter on Thursday. Photo/PHOEBE OKALL  (NAIROBI)

Tom Cholmondeley at the High Court in Nairobi where he was charged with manslaughter on Thursday. Photo/PHOEBE OKALL (NAIROBI)  

By JILLO KADIDA

Lord Delamere’s grandson Tom Cholmondeley on Thursday escaped the hangman’s noose in one of Kenya’s most eagerly-awaited murder trials, but has to wait until next Tuesday to learn what penalty he will pay on being found guilty on a lesser charge of manslaughter.

Relying heavily on the evidence of a best friend of the accused, rally driver Carl Tundo, Justice Muga Apondi found that Mr Cholmondeley shot and killed Mr Robert Njoya three years ago, but spared him death by hanging because a murder charge could not be sustained.

A murder conviction carries a mandatory death sentence while manslaughter carries a maximum of life imprisonment, but no minimum. Immediately the judge pronounced his verdict, Mr Njoya’s widow, who sat next to the Delamere’s throughout the session, left the courtroom.

She expressed satisfaction that her husband’s killer had been found guilty, but was also happy that Mr Cholmondeley was spared the hangman’s noose because she knows the pain of losing a loved one. “I do not want him to be hanged because his wife will undergo the troubles I am going through as a widow,” Mrs Serah Njoya told the Nation. Mrs Njoya said what she needs right now is help to bring up her children.

The Director of Public Prosecution, Mr Keriako Tobiko, declined to comment, saying he will wait until Tuesday when sentence is passed. Defence lawyer Fred Ojiambo said he was disappointed. “Of course I did not expect this. I am disappointed by the judgement,” he said.

The judgement, he said, failed to resolve the issue of whether Mr Cholmondeley was the one who shot Mr Njoya or not. Justice Apondi relied on the evidence Mr Tundo, who was with Mr Cholmondeley on the fateful day, to rule that the accused shot and killed Mr Njoya. The judge said he did not know whether there was any love lost between the two families, but did not wish to intervene.

He found that the accused did not have intentions to kill when he shot Mr Njoya at Soysambu ranch on May 10, 2006. “This case has been proved beyond any reasonable doubt both through direct and circumstantial evidence. Due to lack of any malice aforethought, I reduce the charge to manslaughter. The circumstantial evidence adduced irresistibly leads to the guilt of the accused,” said the judge. According to the judge, Mr Cholmondeley had no malice aforethought.

Giving the history of the case, the judge noted that on that fateful day, Mr Cholmondeley decided to go for a walk in the ranch together with his friend, Mr Tundo, to specifically look for a suitable site for building a residential house. Mr Cholmondeley carried a rifle, but not because he knew he would meet Mr Njoya and, therefore, it cannot be said that he planned to shoot and kill him, said the judge.

On the other hand, Mr Njoya and five other men had trespassed on the farm to poach. The judge dismissed evidence by the defence that had sought to link the fatal shooting to Mr Tundo’s gun, dismissing the argument as an afterthought that lacked merit. The judge said if the issue of the second gun was genuine, the defence ought to have raised it when Mr Cholmondeley was arrested.

“I also concur that human conduct is usually led by self-preservation and self-interest. I would also wish to use my own words and state that the survival principle is very basic to human beings,” said the judge. The evidence adduced before the court, the judge said, clearly showed that only one gun was present at the scene and it belonged to the accused. The judge noted that the evidence of Mr Tundo tallied up with statements from other witnesses.

The defence in the case had said that Mr Cholmondeley shot two brown dogs accompanying Mr Njoya and other poachers. However, the two dogs were never subjected to examination and bullet fragments retrieved and matched with those found on the body of Mr Njoya to prove Mr Cholmondeley’s guilt or lack of it. This is because the fragments were not suitable for microscopic examination.

And the judge on Thursday said that the fact that the bullet fragments were not suitable for microscopic examination does not in any way suggest that there was a second gun at the scene. Mr Justice Apondi also dismissed evidence given by defence witness, Dr Andrew Gachie, who testified as an expert witness.

Dr Gachie had prepared an independent report for the postmortem conducted on Njoya’s body and presented it to court. The court found evidence by Dr Gachie as contradictory. “His evidence was contradictory. Whereas he stated that he expected more bleeding if a high velocity weapon was used, the deceased died within a few hours of the incident. He died due to haemorrhage,” said the judge.

The judge quoted a decision by Lord Campell in which he (Lord Campell) accused expert witnesses of being biased. He said: “With rather less delicacy, Lord Campell declared in the Tracy Peerage case that ‘skilled witnesses come with such bias on their minds to support the case in which they are embarked that hardly any weight should be given to their evidence’.”

The judge added: “Modern variations on this venerable theme continue to be recycled by commentators, and to the rounds in practitioners’ anecdotal tales of ‘cowboys,’ ‘hired guns,’ ‘instant experts,’ and ‘liars for hire.” The judge will pass the sentence next Tuesday after mitigation by both parties in the case.