A witness in the murder case of lawyer Willie Kimani has told the court that DNA found in cigarettes butts retrieved from a ‘killing field” belongs to one of the suspects.
The witness, a senior doctor at the government chemist, said the DNA of Peter Ngugi; a police informer who confessed to the 2016’s killings but later retracted, was positively identified.
According to the doctor, eight cigarettes butts were compared with swabs samples obtained from Ngugi, five of which gave positive feedback.
“Exhibit number 3,4, 5,6 and d8 generated a DNA profile that matched the sample indicated Peter Ngugi with a probability match of 2.82,” the doctor said.
He said another sample did not give any result and was marked as “unknown male.”
The court also heard that the cigarettes butts samples did not match Willie’s, his client Josephat Mwenda and driver Joseph Muiruri’s DNA — all who were abducted on June 23, 2016, as they left Mavoko Law court.
The bodies of the three men – with apparent marks of torture – were retrieved at Oldonyo Sabuk river, a week after they disappeared.
Ngugi is charged with murder alongside Fredrick Leliman, Stephen Cheburet, Sylvia Wanjiku, and Leonard Mwangi.
Testifying before trial judge Jessie Lessit, the witness said the cigarettes butts were all “smoked.”
Justice Lessit also heard that one of the samples generated a mixed DNA profile, meaning it probably was smoked by two people.
Responding to questions from Kevin Michuki, the lawyer representing Ngugi in court, the witness said there are no chances of getting false results.
However, he said, the situation could be different in the case of identical twins.
When asked whether the samples given to him could have degraded, the doctor said he was not aware.
He said; “What I know from my expert point of view is that cigarettes are very good retainers of DNA.”
The government official further said his office followed laid down procedures that were required while obtaining the samples.
“For police cases, a person to be swabbed must be accompanied by a police officer. The officer must identify himself. In this case, it was done by Clement Mwangi,” he said.
Mwangi is one of the lead investigators in the trial. He handles homicide cases at the DCI headquarters.
The doctor said by the time a suspect is taken to their office for DNA sampling, they assume all other procedures have been taken care of.
He explained that for sampling to be legal, there must be an exhibit memo.
But Ngugi through his lawyer Michuki said the officers failed to comply with the provisions of the law.
Michuki said his client did not give consent in writing as required by the provision to section 122 C (1) of the Penal Code.
Lawyer Michuki said there was nothing on record to show on what authority were the samples taken from his client.
he based his argument on Section 122A(1) which provides that “A police officer of or above the rank of inspector may by order in writing require a person suspected of having committed a serious offence to undergo a DNA sampling procedure if there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect committed the alleged offence.”
Michuki said the failure to comply with that section makes the evidence inadmissible.
“We want the record expunged as it was illegally obtained. It is prejudicial to my client based on rights to a fair trial,” he argued.
In response, the prosecution led by Nicholas Mutuku asked for more time to respond to the application saying Michuki had ambushed them.
Earlier, constable Abel Nyapidi, an investigator explained how he and other officers retrieved the said cigarette butts, a few days after Willie, Josephat and Joseph were murdered.
The officer said he was also part of a team that photographed and collected water bottles and food samples in a taxi that was used by Willie, Mwenda and Joseph when they were abducted.
Another witness, Sergent Ole Sena showed court call data records that showed how Ngugi communicated with other suspects on the day of the murders.
Ole sena, in a detailed evidence that included cell site analysis said Ngugi’s phone was at Mavoko court area, at the time Willie, Josephat and Joseph were in court. His phone was also captured at Mlolongo area, and Oldonyo Sabuk river that night.