How Waiganjo's impersonation case was bungled

The acquittal of Mr Joshua Karianjahi Waiganjo, the man who was accused of impersonating an Assistant Commissioner of Police seven years ago has opened a can of worms exposing how the disconnect between the Director of Public Prosecution (DPP) and the Directorate of Criminal Investigations (DCI) has failed Kenyans in dealing with the serious crimes.

For years, Kenyans have decried the criminal justice system for being the weakest link in the fight against Impunity in the country and the judiciary has borne all the brunt for freeing individuals perceived to have committed serious crimes.

The ruling by the trial magistrate Joe Omido to find the evidence provided by the prosecution not sufficient to ascertain whether or not Mr Waiganjo was a police officer, appeared to many as more of a mockery following the movie-like arrest and the evidences provided by the police to the media back then.

However, the magistrate did not hesitate to defend the courts from the outcome of the case in which he discharged Mr Waiganjo and his co- accused namely Former Rift Valley Provincial Police officer Mr John M’mbijiwe and the Ant Stock Theft Unit Commander Mr Remi Ngugi who is now deceased.

From the ruling Mr Omido did not mince his words. He was clear that the whole case was failed by the lack of coordination between the DPP and DCI.

That despite 40 witnesses testifying in the case, a prima faci case could not be established because a crucial witness, an arresting or investigating officer, did not testify.

He pointed out the frustrations that the prosecutor Sandra Kosgei faced from the Police as she tried to have the investigating officer who was the last witness to testify.

“From the statement of the prosecutor, there was clearly a disconnect between the office of the Prosecution and the Police as it would seem strange that the learned prosecutor was not certain as to who the investigating officer in the matter was or were,” noted Mr Omido.

After the arrest of Mr Waiganjo, Mr M’mbijiwe and Mr Ngugi, they were arraigned in court where they denied seven counts of charges of impersonation and abuse of office prompting their trial.

The trial which dragged for years saw a push and pull between the prosecution and the Police as witnesses including senior police bosses refused to cooperate.

In some instances, the prosecutor was forced to apply for a warrant of arrest to have some police officers appear in court to testify.

The friction between the prosecution and the police became obvious after the witness number 40 had testified.

This is when it emerged that the arresting officer had not recorded statements and was not known to the defence.

The prosecution helplessly made attempts to have the officer testify but her efforts were thwarted by the fact that there was no clear communication on the identity of the officers as well as the strong of opposition mounted by the defence team.

When the prosecution was given a chance to have the witness appear to testify on, the officers denied being the investigating officer.

Ms Sandra had informed the court that four officers had investigated the case but only one Ms Fatuma Gedi was to testify.

However, Ms Gedi failed to appear claiming to be undertaking exams at the Kenya Police College in Kiganjo.

A warrant of arrest was issued against her by the court following a successful application by the prosecution on August 28,2017 she appeared late at 3 pm but still claimed not to be the investigating officer.

Complaints over the delay of the case lodged by the defence lawyers led by Mr David Mongeri saw the magistrate order the prosecution case closed.

However, the prosecution obtained orders from the high court suspending the delivery of the ruling on no case to answer pending determination their application to re-open the case.

Both the application and the subsequent appeal were however, dismissed.

Justice Joel Ngugi while dismissing the application on August last year noted that allowing the prosecution to re-open their case will be like ordering for a re-trial that will end up prolonging the case determination.

His decision paved way for the delivery of the ruling on no case to answer without the input of the investigating officers.

Legal experts however, said the failure by the officers to testify watered down the prosecution case.

Lawyer David Mongeri said the arresting/investigating officers were crucial witness who were to explain on a number of exhibits presented in court.

Furthermore, the court raised concerns over the manner in which the police worked since most officers who appeared to testify had no evidences. Most of them had no documented evidence or records to prove their claims.

For instance, the former Police Commissioner Mathew Iteere who claimed Mr Waiganjo was once a police reservist before being discharged in 2004, could not produce a discharge letter.

Mr Peter Njeru then OCPD Njoro, who claimed Mr Waiganjo used to pay him visits at his office did not record the visit in the Occurrence Book.

The officer was also faulted for failing to confirm with the Police bosses whether Waiganjo was a genuine police officer as he claimed.

Since the court could not ascertain whether or not Mr Waiganjo was a police officer, the actions of his co-accused could not be said to be legal or illegal.

Mr Ngugi, died last in the course of the hearing.

However, as the two offices iron out their differences, Mr Waiganjo who faced serious charges remains a free man.