The High Court has acquitted two police officers accused of killing a man in Mathare North estate five years ago while enforcing the curfew for lack of evidence.

In her judgment, Justice Diana Kavedza said that the prosecution failed to adduce evidence to warrant conviction against police inspector Daniel Musau and Corporal Robert Kiboror formerly based at Muthaiga Police Station.

She said that no witness identified any of the accused persons as the one who killed Owino on the material day.

Musau and Kiboro were arrested following investigations conducted by the Independent Policing Oversight Authority (IPOA) over the death of Vitalis Owino alias Madaraka.

Owino died from injuries sustained after his arrest by police officers enforcing the curfew at the Mradi area, Mathare North, Nairobi on May 3, 2020.

In their lengthy submissions, the officers, through lawyer Gordon Ogado had asked the court to quash the decision by the Director of Public Prosecutions to charge them with murder.

Culpability of officers

They had argued the court to direct the DPP to conduct further investigations on their culpability for the murder charge to be preferred against them.

Lawyer Ogado submitted that the criminal proceedings against his clients were malicious, scandalous, unlawful, and unconstitutional and an abuse of the court process.

In their defence, Musau and Kibororo told the court that the deputy regional commander summoned them on August 17. They were detained on the allegation of having committed murder within the Mathare Mradi area on or about May 3, 2020

They say that prior to their arrest, the officers had cooperated with investigating officers from the IPOA on the circumstances of Owino’s death. It was their argument that there was sufficient evidence that they were not involved in the murder.

They said it was imperative and in the interest of justice that the office of DPP was directed to recall their file for further scrutiny and investigations before their plea taking.

They added that the available evidence relating to the alleged offence demonstrates they are innocent. It is unreasonable to charge them for the offence of murder, they say.

“There was sufficient evidence that we are not privy to the death of the deceased as we were not within the location or route where the deceased was allegedly on the material night of the alleged murder on a curfew enforcement patrol with other five officers under the supervision of the OCS both who recorded statements,” they said.