Police criticised for shoddy probe giving suspects unjust freedom

Police are on the spot for shoddy investigations that lead to acquittal of suspects even in cases the State could have secured a conviction.

Lawyers and prosecutors have pointed an accusing finger at the police, blaming them for bungling the cases deliberately or unintentionally.

According to the Principal Prosecution Counsel Gitonga Murang’a, 80 per cent of the criminal cases collapse due to mistakes committed by police and other witnesses and 20 per cent due to insufficient evidence.

“Police can bungle a case deliberately mostly those involving their colleagues. They deploy tactics like becoming hostile or pretending not to remember what happened in a particular incident,” Mr Murang’a disclosed.

Other reasons that lead to flops in criminal cases are prosecution witnesses adducing contradicting evidence, which compel the judge or magistrate to doubt if indeed the alleged crime happened.

For instance, in Nyeri, Chief Magistrate Wendy Kagendo said without sufficient evidence,  tips given to police remain hearsay evidence.

CASE BUNGLED

She spoke while acquitting three hotel employees charged with stealing Sh422,000 from  their employer.

Ms Jackline Njeri, Patricia Nyaguthii and Solomon Kiune were released after the magistrate found that the case was badly done and bungled by the police.

The magistrate found that the main evidence on record against the accused persons, was that of an undisclosed ‘Good Samaritan’ who tipped the owner of the hotel about the theft.

“This could be a good evidence if it was not diluted. The arresting officer gave a different version of how the arrests and the recovery were done. Whiles one said it was the ‘Good Samaritan’ who led them to the suspect’s house, the other said it was Ms Nyaguthii who led them,” noted Ms Kagendo in her ruling.

Police handling the case also failed produce photos of the scene in the hotel and books of accounts.

Lawyer Wahome Gikonyo and Mr Murang’a said police have a major role for a successful trial and have capacity to kill a case.

ROBBERY WITH VIOLENCE

For instance, in robbery with violence and murder cases, where a suspect confesses of committing the crime, Mr Gikonyo said a section of police officers fail to comply with the Evidence Act when recording the confession statement.

A case involving death of a senior police detective in Othaya, Jonah Kimanzi Nzau, collapsed due to an error by the investigating officer when recording a confession.

The suspects in the case; Mr Joseph Kang’ethe, Wakaro Ndegwa and Francis Guchu got their freedom due to the mistake plus lack of sufficient evidence, according to Chief Magistrate Kagendo.

The court heard that the investigating officer Superintendent of Police Stephen Mutua irregularly recorded a confession from one of the accused persons.

The defence advocates raised objections to his evidence.

“They pointed out that the statement did not comply with the Evidence Act as well as the Chief Justice Rules on taking down of a confession. They outlined various breaches in the evidence,” said Ms Kagendo.

The Evidence Act provides that the officer recording the confession should not be the case investigating officer and should be an officer not below the rank of a Chief Inspector.

CONFESSION

“Mr Mutua had recorded the confession while he was the case investigating officer. The confession was disqualified for failing to observe the rules set out in the Evidence Act,” said Mr Gikonyo.

The court, while terming the case ‘serious’ blamed police for mishandling trial.

Lawyer Gikonyo explained that prosecutors also contribute to the fall of a case when they fail to guide the witnesses properly and allow production of evidence without following procedures set out in the law.

State Counsel Murang’a said some crucial police witnesses fail to attend proceedings and appoint other officers to testify on their behalf.

The new witnesses happen to have few details about the case. He said the same applies to doctors and government analysts because they are ‘busy’. This, he said weakens the case.

He cited it as one of the challenges facing prosecutors in the criminal justice system.

ILLICIT BREWS

Another case in Meru involving sale of illicit brews collapsed after a police officer was allowed by the prosecution to produce an exhibit  unprocedurally.

Mr Jacob Muriungi had initially been sentenced to pay a fine of Sh420,000 or to serve seven years in prison in default for being in possession of illegal alcoholic drinks.

But on appeal, Justice Alfred Mabeya freed him after noting that the prosecution allowed the exhibit report to be produced by an unqualified person, Inspector Benson Wafula.

Mr Muriungi was arrested on March 16, 2016  at Mbeu Location within Meru County, in possession of 840 litres of Mukasa alcohol drink at his home but the exhibit was sent to the government chemist nine months later.

“The exhibit memo was received by the government chemist on January 6, 2017. The report was prepared and signed on February 9, 2017. There was no explanation why the exhibit remained with the Nchiru Police station for nine months,” noted the judge.

Mr Murang’a explained that the law allows the prosecution to look for another witness who is familiar with particular matter and handwriting, if the specialist fails to appear.

“There are challenges of police officers who are witnesses getting transferred to other stations. Some refuse to attend court because they are not reimbursed their transport cost. By law, they are not supposed to be reimbursed by the court but should be paid at the working stations,” he added.

DEFILEMENT CASE

Some officers, he said, are denied permission to attend by their bosses.

“If an officer knows he will use his own money for transport, they would prefer not to attend. For instance others travel from far,” said Mr Murang’a.

He said if a murder or defilement case is closed without a postmortem or doctors report, it is bound to collapse.

In Makueni county, failure by police to produce bhang exhibit in court earned the accused person freedom while the court noted there could be possible fabrication of charges.

Blastus Orori, 61, who was serving three years in prison for possessing bhang was set free by Justice Charles Kariuki following a successful appeal.