Judge declines to reopen Cholmondeley case

The High Court has turned down a plea by the family of the late game warden Samson ole Sisina to reopen murder charges against Lord Delamere’s grandson Tom Cholmondeley.

Justice George Odunga dismissed the eight-year-old constitutional petition by ole Sisina’s widow Seenoi, challenging the State’s termination of the murder charges against the son of the fifth Baron Delamere on May 18, 2005.

“To grant the orders being sought by Seenoi Sisina on behalf of her eight children, would amount to overturning the decision of a superior court which acknowledged a nolle prosequi by the Attorney-General to terminate the case,” ruled Justice Odunga on May 10.

The judge said if the ole Sisina family was aggrieved by the court decision, they sould have moved to the Court of Appeal rather than challenging the court ruling through a constitutional petition.

Ole Sisina, a game ranger with the Kenya Wildlife Service, was allegedly shot dead by Cholmondeley on April 19, 2005 while conducting an undercover investigation into the illegal bush-meat trade on the Delamere’s 19,000-hectare (48,000-acre) Soysambu ranch in Naivasha.

Cholmondeley admitted killing Sisina but said he was acting in self-defense after being fired upon first. “I shot the man in the firm belief he was a robber, intent to cause harm to myself and my staff. There was no indication that he was a KWS ranger, and I am most bitterly remorseful at the enormity of my mistake,” he said in his statement.

He was subsequently charged with murder and spent a month in custody before then AG Amos Wako directed then Director of Public Prosecutions Philip Murgor to terminate the case citing lack of evidence to sustain the charges. Thereafter, the State ordered that an inquest into the death of le Sisina be opened.

It is the nolle prosequi, a Latin legal phrase meaning “we shall no longer prosecute”, which provoked the constitutional reference filed by the widow after termination of the case by Justice Muga Apondi.

By coincidence, it was Justice Apondi who later found Cholmondeley guilty of manslaughter for a second fatal shooting of stonemason Robert Njoya in 2006 and jailed him for eight months.

The judge was later found unsuitable to continue serving but has moved to court to challenge the Judges and Magistrates Vetting Board’s decision to send him home.

Through the family’s lawyer Katwa Kigen, Seenoi Sisina and her children Leah, John, Lorna, Hannah, Penina, Kelvin, Elizabeth and Emmanuel, sought various declarations on the legality and constitutionality of the termination of the case and the order of a public inquest.

Charged afresh

Seenoi urged the court to quash termination of the case by the AG through the DPP. She sought an order that Cholmondeley be charged afresh with the murder of her husband. The widow argued the previous Constitution had no provision to delegate powers to the office of the DPP to terminate the case, since the office was legally non-existent.

“The AG acted in violation of the Constitution when he purported to terminate the case through the DPP, a person who was unknown to law and could not therefore discharge on his behalf the constitutional functions provided under Section 26(5) of the Constitution,” said Kigen.

Kigen asked the judge to review Justice Apondi’s orders and rule that the murder charges brought against Cholmondeley be commenced, heard and determined by High Court.

However, Justice Odunga declined the orders sought by ole Sisina family, saying there was insufficient material before him to make a determination on whether the AG failed in his duties by delegating powers to the DPP to stop the criminal case.