The role of prosecutors was brought into sharp focus during a ruling in a murder case against a police officer.
While acquitting Eric Musila, who had been charged with killing popular musician Diana Chemutai, alias Chelele, in 2016, Justice Richard Mwongo said detectives who investigated the case failed in their duty.
“I know it is a difficult situation. I have my suspicions and have stated them in my decision,” the judge said.
Justice Mwongo cited glaring gaps, pointing to phone exchanges between the policeman and a man named Antony Ngare, who was not arrested.
“The prosecution failed to recognise a change of call data pattern of the accused. It is the court that has noted the gaps,” the judge said.
He added that it was upon prosecutors to establish the relationship between Musila and Ngare.
“These are the questions [on which] the prosecution was supposed to assist the court in its submissions,” he added.
“The investigators also failed to take the DNA sample of Musila for analysis and match it with that of the deceased.”
The court could not establish whether the policeman met Chemutai on the day she was killed or if Ngare was with Musila at the time of the killing.
He said the policeman may have travelled on the day of the incident but prosecutors failed to establish the alteration in the call data.
The judge noted inconsistencies in the accused’s alibi, including denying that he knew Ngare despite phone data showing that the two communicated more than 40 times.
“Once again, the prosecution failed to link the two to the crime despite the obvious communication,” the court said.
Throughout the judgment, Musila, who was in a grey hooded sweater, sat pensively, eyes glued on the floor.
He only looked up after the ruling, but was immediately whisked away by police.
Chemutai’s relatives screamed and wailed uncontrollably when Justice Mwongo issued the ruling.
One of them collapsed and had to be assisted by the other relatives.
The Administration Police officer was recently convicted of killing Eliud Kipchirchir, a land surveyor.
The ruling was delivered in a Kisumu court by Justice Tripsisa Cherere on behalf of Justice David Majanja on April 9.
The officer was in the VIP Protection Unit and had been assigned to the then Transport PS Cyrus Njiru when the killing happened.
Musila had denied the murder charge.
He pointed the finger at his wife Chemutai, who he claimed had access to his gun and often travelled to perform in various towns.
The two were charged jointly, but the charges against Chemutai were dropped following her death in 2016.
The case was then transferred from the High Court in Kericho to Nairobi before it was eventually taken to Kisumu following an application by Musila’s lawyer on the grounds of his (Musila’s) safety.
According to the firearms movement register, the policeman was given a pistol with a magazine and 12 rounds of ammunition at 2.40pm on January 10, 2012.
The bullets were 9mm calibre, the same as the two whose spent cartridges were found at the scene of the killing.