#MAVOKO 3 #WILLIE KIMANI

A police officer accused of shooting and killing a fisherman in Lake Naivasha six years ago will know his fate in February 2021, the High court said on Monday.
Evans Maliachi Wiyema is on trial for the murder of Moses Kinyanjui Wanyoike on July 27, 2014, at Crescent Island, Lake Naivasha.
According to the evidence on record, the deceased was fishing near Crescent Island together with his friends — Johnson Ndichu and Douglas Tutu — when an Anti-Stock Theft Unit’s officer shot him at close range on the head.
A day before the killing, a sheep belonging to Crescent Island had been reported missing. Following the disappearance of the sheep, the owners of the Island filed a complaint with the police.
Wiyema and his colleague are said to have gone to the site in search of the alleged stolen sheep and to pursue suspects when they sighted the three fishermen. The officer allegedly ordered Wanyoike, Ndichu and Tutu to surrender, but they continued fishing.
It is at that point that the officer is alleged to have started shooting in their direction. Fearing for their lives, the three men swam deeper into the ocean and hide beside some reeds.
In their testimony, Wanyoike’s friends told the court that the officer pulled a boat that had been parked at the shore and led it to where they were hiding and shot at Wanyoike in the head. When they saw blood and Wanyoike’s body floating, they testified that they opted to surrender to save their lives.
Wanyoike’s body was discovered a day later after a search was called following demonstrations against the police in Naivasha led by area Member of Parliament.
In what was seen as a coverup, Ndichu and Tutu were arrested and charged with robbery, but a lower court set them free due to lack of evidence.
After they were acquitted, the Independent Policing Oversight Authority and International Justice Mission filed a case at the High Court seeking to have the officer held accountable for the murder.
The DPP also concurred with IPOA’s recommendations and directed that Wiyema be charged for murder.
To prove their case against the officer, the prosecution called a total of 16 prosecution witnesses. At the close of the prosecution case, the court held that Wiyema had a case to answer.
On Monday, November 23, 2020, while making his final submission before high court judge Richard Mwongo, Wiyema defended his actions saying he acted in self-defence.
He also claimed that two key prosecution witnesses gave contradicting testimony and so their statements ought not to be believed.
The prosecution, however, said it has enough evidence to prove the officer intentionally and with malice shot the fisherman and later tried to conceal his action.
“We seek to prove that this is a clear case of excessive use of force and police brutality. Following the shooting, the officer tried to cover up the deceased death and only when there was a public outcry did a search for the deceased body was launched,” submitted senior prosecution counsel Nelly Maingi.
Maingi asked the court to take note of the fact that Wiyema’s colleague who was with him at the time of the shooting, did not fire a single shot.
“His claim of self-defence, cannot be supported,” the lawyer argued adding that Wiyema, after the shooting and in a bid to hide the truth, went ahead to charge the deceased friends with a crime of stealing a sheep.
Her submissions were supported by the victim’s lawyer – Edward Mbanya – who told the court that the prosecution has established a case beyond a reasonable doubt that the accused person by the commission, is guilty of murder.
Mbanya, a lawyer from International Justice Mission (IJM), said the officer ought to have been guided by the Police Service Act and the sixth schedule which emphasizes that a police officer must result to non-violent means as the first option and use force only when non-violent means are ineffective.
The lawyer said the accused is criminally culpable for the loss of life of Wanyoike as he was fully aware of his action will cause the death or grievous harm to him.
“The testimony of the accused person is riddled with contradiction and inconsistencies and is not corroborated and should therefore be disregarded,” Mbanya added.
The lawyer noted that the accused testified on oath and confirmed that he shot the deceased but denied that he was on a boat as claimed by the prosecution. He instead asserted that he was on the edge of the shore on dry land.
He claimed that he saw the deceased approach him with a panga before and only shot him after verbally warning him and shooting in the air. He denies going after the deceased in a boat. He also told the court that he lost balance and fell and did not see the person he shot.
“Even if his testimony was to be believed, he had an opportunity and time to shoot the deceased with intent to disable him but not to kill him as he did a gunshot in the head. His act was therefore reckless in its nature,” Mbanya submitted.
Therefore, the lawyer said the evidence points to the true circumstances in which the officer committed the murder and he is now “desperate on his claims of self -defence yet to date, he has not produced any witnesses to corroborate his account.”

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