The Director of Public Prosecution (DPP) wants 14 people sentenced to death for causing a fire at a dormitory in Endarasha Boys' High School, that left two Form One students dead eight years ago.
State Counsel Njagi Njue on Wednesday told Justice Jairus Ngaah that 12 of the suspects are former students of the school. The others are petrol station dealers.
The former students were identified as Oby Tylene Oyugi, Derrick Wambugu, Davin Ndung’u, Andrew Kandia, Edward Karugu, Stephen Ndirangu, Wilson Wahome, Peter Njoroge, Anold Mwaura, Ayub Kung’u, Kevin Muya and Gerishon Mwangi.
The petrol station businessmen are Fredrick Githinji Wangai and Stephen Mwaniki Mutahi.
Mr Njue said the accused were responsible for the fire that killed Kennedy Karogo and Joseph Mwangi on October 17, 2010.
While making his final submissions in the case, he said that according to circumstantial evidence by witnesses, the court should rule that they have a case to answer and should be placed on the defence.
The court heard that parts of the victim's bodies and their parents' specimen were taken to the government chemist for generation of DNA profiles but that this was unsuccessful.
Mr Mwangi’s body was identified by his mother because of a crack on a tooth while Mr Karogo’s parents were unable to identify his body due to the nature of injuries, the judge heard.
Mr Njue said, however, that the government analyst testified that remains found in the burnt facility belonged to human beings.
The dormitory, christened Fr Wambugu, housed 180 Form One students.
“Circumstantially, the prosecution has been able to show the bodies were of a human being and belonged to the two students. The pathologist indicated that scientifically, the victims were burnt to death, and ruled out the possibility of them being dead before the fire started. He explained that through what he called the mechanism of death,” said Mr Njue.
The prosecutor further submitted there was uncontroverted evidence that the fire was caused by human beings who used petroleum products.
A black 10-litre jerican was found 20 metres from the dormitory and residue were ascertained by the government chemist as those of petrol.
“[Why was that jerican in] the dormitory? It was not a garage. The container was used to carry petrol. Those who went to the scene said the fire was fierce and that they could not extinguish it. The fuel accelerated the fire,” stated Mr Njue.
On the identity of the arsonists, the prosecutor said the suspects were arrested after students were asked to write anonymous notes about the fire.
“Investigations were carried out and police gathered from the named students that they had contributed money to buy the petrol. The suspects also named the traders who sold them the petrol,” said Mr Njue.
He noted that though it is not certain who set the fire, the circumstantial evidence shows the accused persons cooperated in commission of the crime with the common intention or causing harm or killing.
He said the traders, as reasonable people, should have known the students who purchased the fuel had bad intentions.
“There was a common intention among all the suspects. They had malice aforethought,” stated Mr Njue.
The accused persons, through a group of five lawyers led by Njuguna Kimani, opposed the State's submissions and asked the court to acquit them.
Mr Kimani said the State had not proven ingredients of murder to warrant convictions.
He added that the State failed to established a case against the accused persons and urged the court to find their prosecution a mistrial since two of the suspects, who were discharged earlier, were found to be mentally unfit. This, he said, was discovered by Dr Wambui Njoroge.
“How could they form a common intention considering one was mentally unfit and that the mental capacity of the other was not established? The legal effect of trying them together is a mistrial,” said Mr Kimani.
He also questioned why none of the students who wrote the anonymous notes were called as prosecution witnesses in court.
The two businessmen told the court that there was no evidence to show they sold the fuel to the students.
The ruling will be made on November 20.