, NAIROBI, Kenya, Jul 19 – The Attorney General has appealed against the acquittal of police Constable Edward Kirui over the shooting of two protestors in Kisumu at the height of post election violence in 2008.
In a certificate filed at the appeals registry, the Attorney General said the case involved a point of law of exceptional public importance.
“It is desirable in the public interest that the points should be determined by the Court of Appeal,” he said.
The AG states that he is dissatisfied with the whole judgment of Justice Fred Ochieng delivered on June 21. In the ruling, the High Court judge freed Mr Kirui saying the prosecution failed to prove beyond any reasonable doubt that the fatal bullet that shot and killed the two young men was fired from the policeman’s firearm.
Mr Kirui had been accused of shooting and killing George William Onyango and Ismael Chacha on January 16, 2008 at Kondele market.
The AG wants the Court of Appeal to determine whether the judge by failing to state whether the acquittal was in respect of the two counts of murder, contravened section 163(3) of the Criminal Procedure Code and whether such failure rendered the entire trial, the proceedings and the resultant judgment a nullity and occasioned a gross miscarriage of justice.
He is therefore asking the Appeal Court to declare the case a mistrial as the judge correctly found that the two victims died of gun shots, the person who shot them had the requisite malice aforethought and the accused was positively recognised as the person who was at the scene of the shooting incident.
He adds that Mr Kirui was captured on film as he appeared to shoot the two victims and the fatal bullet was fired from the assault rifle 3008378.
Amos Wako therefore wants the Court of Appeal to determine “whether the judge was right in acquitting the accused person on the mistaken ground that the fatal bullet recovered from the body of one of the victims was discharged from a gun that bore a different serial number from the one the accused had, when in actual fact the totality of the evidence adduced proved beyond reasonable doubt otherwise,\’\’ he states.
Justice Ochieng set Mr Kirui free saying, “I have no alternative but to give the accused the benefit of doubt because it is possible that he may not have been the one that shot and killed the two protestors. I therefore acquit him.”
The prosecution called 22 witnesses to give evidence against Mr Kirui while two defense witnesses including Mr Kirui testified.
In reaching his verdict, Justice Ochieng said he had taken into account that he did not have the opportunity to observe the demeanor of 19 witnesses who gave evidence before justice Onesmus Mutungi who retired.
The judge further observed that there were inconsistencies in the testimony given by some witnesses as some said the policeman was not at the scene of crime while others said he was.