Justices Daniel Musinga, William Ouko and Gatembu Kairu noted that there was no proof of the existence or the nature of the injuries sustained by Patrick Ndolo Kanyingi and Justus Makau Mulwa.
Saturday February 10, 2018
By SAM KIPLAGAT
A 35-year-old man who pleaded guilty to being a member of Al-Shabaab
terror group six years ago, will now serve 15 years in jail after the
Court of Appeal quashed a life sentence imposed on him.
Elgiva Bwire Oliacha was lucky that the prosecutor during his trial failed to table in court a P3 form of two victims who suffered grievous harm during the attack at Kaka Bus stage on October 24, 2011.
Therefore, judges of the Court of Appeal ruled it is a basic rule of evidence in criminal law that an accused person must not be convicted of a criminal offence unless the court is satisfied that his guilt has been proven beyond reasonable doubt.
They said that from the record, the degree or classification of injuries sustained by the two victims were supplied by the investigating officer and verbally communicated to the court by the prosecutor.
Chief magistrate Grace Ngenye (now a judge of the High Court) had sentenced Oliacha to life imprisonment for grievous harm and additional 15 years for engaging in organised criminal activity by being member of the outlawed terror group.
The court also sentenced him to seven years each for being in possession of firearms, hand grenades and ammunition.
When he first appealed before the High Court, Justice Msagha Mbogholi had directed that the sentences to run concurrently and not consecutively.
Oliach was arrested following the terror attack along Race Course Road in Nairobi. When the police interrogated him, he took him to his house in Kayole, they recovered an AK47 rifle, a sub-machine gun, 2 revolver pistols, 2 automatic pistols, 717 bullets, 1 SNG machine gun magazine and 13 hand grenades.
The court heard that Oliacha converted to Islam in 2005 and immediately tried entering Somalia to join Al-Shabaab. His first attempt failed and was returned at the border. He eventually succeeded to cross to Somalia through Liboi, on his second attempt.
He underwent training and was when he was qualified, he was dispatched to Kenya, where he settled in Kayole and started recruiting members.
The prosecution said he was the man who supervised and directed the twin attacks at Race Course Road.
The three judges dismissed other grounds of appeal stating that they were satisfied that Oliacha knew what he was doing as there was no suggestion that he was suffering from any disease of the mind.
He had also faulted the move to conduct proceedings at Nairobi Area police headquarters. “We are unable to find anything of unusual character to make us agree with learned counsel for the appellant that the plea was procured by fear of the environment at the police headquarters. At no stage did the appellant complain of torture or mistreatment by the police. Neither did he exhibit any signs of confusion,” the Judges said.
They added that they found nothing objectionable to the holding of the proceedings at the police headquarters and the nature of exhibits required a place with sufficient security and where safety was guaranteed. Oliacha had been charged together with Mr Omar Muchiri Athuman and Mr Stephen Macharia Mwangi, who pleaded not guilty.