Mavoko 3: Willie, Joseph and Josephat’s Murder Case
on 18th Jul 2018
Mavoko 3: Willie, Joseph and Josephat’s Murder Case
Four police officers; Senior Sergent Fredrick Leliman (1st accused), Stephen Chebulet (2nd accused), Sylvia Wanjiku (3rd accused) and Leonard Mwangi (4th accused) and a civilian Peter Ngugi (5th accused) are facing murder charges in the Willie, Josephat and Joseph murder case.
The Judiciary has assigned Lady Justice Sitati to hear the trial. Justice Sitati is from Kakamega and will be sitting in Nairobi whenever the trial is scheduled. The bail application remains before Lady Justice Jessie Lessit.
November 7, 2016
The case came up before Justice Sitati. Counsel for the First, Second and Third Accused persons, Cliff Ombeta was not present. An Associate from his firm informed the court that he had taken ill at 11 pm the night prior, been admitted to hospital and discharged at 3 am with the instructions to take three (3) days bed rest. The court instructed that he assign someone from his practice to proceed with the case on November 8.
8 November 2016
Three members of his practice attended court on November 8 and all disassociated themselves from the trial on grounds that they either knew Willie or were conflicted and had previously advised Cliff Ombeta to not take on the brief. The court reluctantly accepted this argument and adjourned the trial to November 10.
10 November 2016
The trial finally took off on this day. The court managed to take the testimony of two witnesses in camera. The trial is set to begin again from 9 – 12 January 2016. The Prosecution informed the court that they intend to now call sixty (60) witnesses. The next five of whom will be under protective orders and therefore on camera.
22 November 2016
The bail hearing came up on November 22. The 1 – 4 accused persons have made an application to be admitted to bond terms. The ruling on this bail application is to be on December 8, 2016, at 2 pm, Milimani High Court before Justice Lessit. This is a significant ruling due to the precedent it sets for other similar cases of police killings where there exist real and perceived threats to the witnesses and families. Undoubtedly, this decision will certainly impact the continued desire of witnesses to participate in the judicial process. The victims’ representative, Senior Counsel Fred Ojiambo, put up an authoritative and persuasive objection to the application of bail.
8 December 2016
The bail application was denied.
14 February 2017
Trial resumed in private today. Journalist and members of the public, court orderlies were not allowed in court to allow witnesses who are under the protection programme to give evidence
1 March 2017
Umazi Malingi-Director of Investigations at IJM
Umazi, told court the night Willie, Josephat and Joseph disappeared, they moved from one police station to another as hopes of finding the three alive faded. Umazi, was overcome by emotions as she recalled how she begged a boda boda operator who had retrieved Willie’s note.
Umazi said she received a call at about 9pm on June 23, 2016 informing her that Willie, Josephat and Joseph were missing. She said together with other officers from IJM, they went to Mlolongo police station to bail them out thinking they were being held at the station.
But they were not there. Later they went to Syokimau police camp where they found a police officer named Faith. The officer informed them she had no idea where the three were.
14 March 2017
Paul Mitambo -Police Officer attached at Mlolongo Police Station.
He told court that he briefly confronted three men in the middle of the open field in Syokimau. He was very nervous, prompting him to cock his AK 47 rifle as he approached them to find out who they were.
The incident occurred on 23 June 2016, between 8pm and 11pm. Mitambo said he first saw the strangers at about 8pm on his way home. He said the three men were standing next to a silver salon car, which had its hazards lights on and whose registration he could only remember as KBU.
Mitambo told court that he got more suspicious after his landlady, Agnes Wayua, pointed out the strange vehicle and the three men. Mitambo said he noticed one of them had a Maasai leso and was about 5.6 feet, while another was wearing a jacket. He said he left for work but returned at about 11pm after he fell ill. He found the same vehicle and a second car in the same place.
27 March 2017
Prosecution Witness: Dr. Johansen Oduor
Dr. Johansen Oduor testified on the causes of death for Willie Kimani, Joseph Muiruri and Josephat Mwenda. He formed the conclusion that Willie’s death was caused by blunt force trauma. The right side of the face was deformed, and his skull was crushed in. The injury to the head was severe and could possibly be caused by a stone dropped on someone’s head or if the person were dropped from a significant height. As for Joseph, the pathologist concluded that he died as a result of ligature strangulation and head injury from blunt force trauma. He had defensive injuries on his arms. Josephat’s cause of death was head, neck and chest injury due to blunt force trauma. Dr. Oduor testified that all injuries on the victims were caused before death because there was bleeding. He also connected a rubber cord produced as exhibit in court to the strangulation marks on Joseph and Josephat.
28 March 2017
Prosecution Witness: Chief Inspector Stephen Lelei
The OCS Mlolongo Police Station, Chief Inspector Stephen Lelei, testified today. He testified that his roles as OCS include supervising all the operations of police units based at the station including SPIV, (Special Crimes Prevention Unit) whose work is crime prevention within the station’s jurisdiction.
He said that the 5th accused (Peter Ngugi) was known to him as an informer from his days as the OCS in Kabete and that upon transfer to Mlolongo in May 2016 the fifth accused visited him twice or thrice. He was however at pains to explain in what capacity the fifth accused visited since he insists that the 5th accused was nothing more than an informant who had no information for him in Mlolongo.
Chief inspector Lelei also confirmed that he was aware of the pocket radio issued to the in charge SPIV who is the 1st accused (Fredrick Leliman). Upon further cross examination by the victims’ Advocate, Mr Lelei confirmed making several calls to the first accused on the material day but cannot remember what he was calling him for. The whole time he had his pocket phone but did not use it. He was at pains to tell the court why not. He said he did not know anything about what was happening then. He also said that when a policeman uses a radio everyone in the channel can hear but when a mobile phone is used, only the recipient can hear.
29 March 2017
Prosecution Witness: AP constable Alfred Makau
AP Constable Alfred Makau was today’s sole witness. He testified that he is based at the Syokimau AP Camp where he arrived late on the evening of 23rd March from a trip to Kibwezi. Shortly after his arrival on that day, the 3rd accused person Sylvia handed him the keys to the cell saying she needed to leave briefly. Once he got the keys he confirmed that the cell was closed but did not check inside for detainees. The camp did not have a cell register but Sylvia told him that there were no detainees in the cell before she left at around half past six that evening. He checked the OB to determine who was on duty that week and confirmed that it was the 2nd and 3rd accused. APC Makau also described the layout of the AP camp noting the location of the armoury, cell, report office and staff houses. He confirmed photographs of the camp taken by crime scene investigators.
At around 11pm that night some strangers in a vehicle led by a bodaboda (motorbike) came to the post and asked whether there were some three people detained in the camp. Only one person spoke to him while others remained in the car. He told him that there were no detainees at the camp and that he was not in a position to know if there were detainees during the day since he was not on duty then.
On the morning of 24th June, APC Makau said that the 2nd accused was out on bank duty so he stood in for him at the report desk. It was while serving in this role that IPOA, Flying Squad and IAU officers came to the camp inquiring about the three missing people.
During Cross-examination, the witness said that he does not remember anything regarding the weather on the 23rd June 2016. Upon being shown the Occurrence Book by Counsel for the first three accused persons, he confirmed that there was an entry of rainfall on the 22nd and none on the 23rd whose weather was recorded as chilly. On further cross-examination by victims’ counsel, the witness said he is not a meteorological expert.
30 March 2017
Kenya Police Corporal Richard Nyakundi
Corporal Richard Nyakundi testified today that on the 23rd of June 2016 he was called to Mavoko Law Courts by the in charge of Prosecution to take to court an original passport of a person accused of being in the country illegally. While in court he was approached by an AP officer whom he knew as Brown (Peter Ngugi). Brown had been introduced to him as such in May 2016 at the police canteen in Mlolongo Police Station by Snr. Sergeant Leliman. Brown asked him for assistance with his phone in order to call someone.
He further testified that after the initial introduction, he met Brown once before meeting him in court on the 23rd of June. The second time he met Brown outside the same canteen standing with Senior Sergeant Leliman and other people. He identified Leliman in Court as the 1st accused and said he could not see in court the officer/person he called Brown.
The witness also detailed his arrest in September by DCI officers who found him with the same phone he was using on June 23rd. He handed over his phone to the arresting officers which he identified as an exhibit.
He testified that on 29th June 2016 while at Athi River he saw human feet from a distance in the water. He reported the matter to Ol Donyo Sabuk Police Station. The following day, he saw a gunny bag with flies over it, the feet he saw earlier were still in place. He once again reported at the station where police accompanied him to the scene. The officers sent for ropes which they used to tie the first body and pull it out of the water. They then got the second body and brought it out to where the first one was. The officers asked for the bags to be opened but the residents could not identify the bodies. They loaded and tied the bodies onto a police land cruiser and the police took them away.
Sergeant (Sgt) Janet Kitusya
She testified that a report of a body sighted in Athi River was made on 29th June 2016. The OCS Ol Donyo Sabuk Police Station sent an officer who reported that the body was within the jurisdiction of Nguliba Police Station. The OCS then informed the OCS for Nguliba police station to take action. The next day a report of an additional body within the station’s jurisdiction was made by the same person. Sgt. Kitusya accompanied by other officers went to the river and recovered the two bodies which she then escorted to City mortuary.
Mary Wairimu Njoroge
She testified that she is a resident of Kamirithu in Kiambu County. On 23rd June 2016 at about 3:30 pm she noticed an empty vehicle parked outside her home. She ignored it and went about her business. At around midnight, policemen from Tigoni woke her up asking about the vehicle. Without opening her door she told them that she knew nothing about the vehicle which was towed away. The following morning policemen came and took her statement.
PC Driver Wilson Juma Kamau
He testified that he is based at Mlolongo Police Station attached to SPIV. On the night of 22 June 2016, he was out on patrol with the rest of the SPIV team and the OCS, Mlolongo. He requested for sick off the following day since he was feeling unwell. On 23 June he was taken to the hospital unconscious at around 10:00 am. He regained consciousness and left for home at around 4:00 pm. He confirmed that on the 22 June he had left the 1st accused with the police radio.
PC Kamau testified that he knew the first four accused persons and did not know the 5th accused. In fact, he said he had neither met nor communicated with him. The victims’ counsel during cross-examination produced phone records showing that between 23-26 June 2016 PC Kamau made 9 calls to the 5th accused. Faced with this evidence, PC Kamau successfully requested the court to allow him to finish his testimony in camera.
Application by Defence counsels
Once court was out of the camera session, counsel for the first 3 accused in agreement with counsel for the 5th accused applied to have the order of questioning witnesses changed to have the victim lawyer cross-examine before defence counsels. The prosecution opposed the application and asked the court to consider receiving substantive application and responses on the matter.
The court ruled that the defence counsels have seven days to file and serve the substantive application. Thereafter the prosecution, victims’ counsel and the interested party will have seven days to also file and serve responses. The application will be heard on 24th April 2017.
15 July 2017
Constable Bernard Kiplagat Serem – crime scene investigator
Tabled photographs in court. Serem said he took the photographs on 1 July 2016 after one of the bodies was seen floating at river Athi near, Ol Donyo Sabuk Police Station in Machakos. Serem said the body was stashed in a gunny bag and a diver helped retrieve it from the river. The officer said he took the photos before and after the body was pulled out of the water.
The body was that of Josephat Mwenda. Serem said six days after retrieving the body, he was asked to accompany other officers to Sergeant Maina’s house where he also took photos. He said they went to his house Mlolongo police station after some items linking him to the deaths, were recovered in his house.
13 July 2017
Court today rejected an application seeking to adjourn the case. Defence wanted the trial — which resumed after a two-month break — suspended to allow them to appeal against a ruling that allowed cross examination of witnesses.
Justice Lesiit said the application was premature. The judge said cross-examination by the defence does not hinder the prosecution’s ability to conduct a focused prosecution.
13 July 2017
Johana Ngolia, police officer attached to Ol Donyo Sabuk police station. He told court how two bodies were retrieved from River Athi on June 30, 2016. Ngolia said the bodies had been stashed in gunny bags and the head of one of the victims was covered with a plastic bag.
18 July 2017
Dr. Joseph Kagunda Kimani, doctor from government chemist
Dr. Kagunda told court cigarette butts retrieved from scene of crime matched with Peter Ngugi’s DNA profile. Kagunda said filters in the cigarette butts retain DNA profiles better and it was easy to match them with him, He said it is not possible to find a similar match in the current existing population.
Soiled underwear’s, dirty trousers, vests, trousers they wore on the fateful night were also brought to court. Samples of water bottles, and juice cans, wooden bars, electricity cables, and gunny bags are part of evidence tabled.
18 July 2017.
Dr. Kizzie Shako- a police pathologist
She told court today that she assessed Ngugi (Fifth accused) before he was charged. Shako denied that Ngugi was in distress before he was arraigned after he confessed. She said Ngugi was in fair general condition, composed and his memory was intact. He did not cry either.
Dr. Shako told court she also assessed First accused Senior Sergeant Fredrick Leliman, Stephen Cheburet and determined they were fit to stand trial.
The case was adjourned to 1 October 2018 after one of the defence lawyers was taken ill.
October 8 2018 The trial resumed after a long break. The prosecution called Kennedy Mwandime, an officer from the Integrated Communication Command Control Center – Jogoo house. Mwandime gave evidence relating to how Intelligence uses high- tech surveillance solutions to monitor and survey surroundings within Mombasa, Nairobi and its environs.
The officer also told the court the command centre has intelligence video surveillance (IVS) systems, Automatic number plate Recognition solutions which have capabilities of capturing images and restoring them, blacklisting number plates. He also talked of and fourth generation police mobile pocket phones which are assigned to officers in the field. He said the command centre is able to track motor vehicles on major roads within the city as well as track frequencies of police pocket phones.
Tuesday, September 9. 2018 Mwadime continued with his evidence-in-chief. He gave more insight into the police radio signal tracking devices. He also took the Court through video evidence retracing the last movements of Willie Kimani, Josephat Mwenda and Joseph Muiruri as captured by surveillance cameras on June 23.
The evidence showed images of the vehicle the three used on June 23, at some instances the images that were replayed before the judge showed, though not very clear, images of two occupants in the vehicle.
October 11. Mwandime continued with the evidence, this day, explaining how police radios are tracked at the integrated command center.
He told the Court that he was tasked to retrieve movement data of all radios used within Mlolongo and Athi River area on June 23.
Of interest is one radio number 359 033 04 which was captured at Syokimau Police Post on June 23, between 12 .20 min to 12. 40 on that day.
The radio’s frequency was captured later within Mlolongo Police Station at 15.20 to 15.40 and at Syokimau Police Station at 18 .40 to 19.00.
The witness also confirmed that the same radio was at an isolated field within Soweto area between 19.40 and 20.00 the very same day. Later evidence showed it moved to Eastern bypass and minutes later on Thika High way after midnight.
According to Mwadime, investigators wanted to find out if there was any radio that registered any activity within Mavoko law Court particularly in the hours of 12.00 hours.
February 11, 2019. The case was scheduled to start at 9 am. However, it did not kick off at the time expected because the third accused person (Silvia Wanjiku) was not produced in court.
The other four suspects were all in court apart from Wanjiku. The prosecution and prison officers in charge of inmates could not explain the whereabouts of Wanjiku that morning.
The judge adjourned the case for about 15 minutes to allow the officers trace her, but when the case was called after the short break, the officers informed the court that they were not aware Wanjiku was required in court that day. They said had an order to bring her on 18th and not 11th.
Meanwhile, Prosecution Witness Chief Inspector Kennedy Mwandime continued with his evidence – (From where he stopped in 2018 ). He explained the GPS coordinates of the crime scene areas.
He had different frames in which he was referring to. Specifically, he was referring to 9 locations of interest. These are the locations where one particular police radio was captured.
The locations are within Mololongo, Mavoko, Syokimau police post, Thika super highway, Eastern bypass and Valley View Park.
Defence objected to the prosecution using google maps to explain the coordinates saying it was introducing new evidence. The argument by defence was overruled.
On February 15. Prison authorities handed over a report that explains circumstances that made them fail to produce Silvia Wanjiku (accused 3)
on February 18, 2019. (It had been adjourned on February 15 to allow the prosecution supply documents to the defence) On this day the defence confirmed that they had received all the statements they had sought. The defence then told the court that they were objecting the tabling of the confession statement on grounds that Ngugi(accused 5 who confessed to the killings) tortured, threatened and coerced to sign the statement in 2016.
Following the objection, the judge ordered a trial within a trial. The prosecution called six witnesses for the trial.
Witness 1 Geoffrey Kinyua. – He explained to the court how he cautioned the accused of his rights prior to him recording the confession. He denied claims of coercion and intimidation. He told the court that the accused was treated well – given food and a place to sleep the night he was arrested. He told the court the accused person confirmed that he went to school.
Witness 2 Clement Mwangi: Was one of the arresting police officers. He explained how they arrested the accused. He said accused gave the confession voluntarily and in the presence of the accused brother. Because he implicated police officers – they decided to treat him as a protected suspect.
Witness no 3: Dr Kizzie Shako told the court that when she examined the 5th accused,(before he was charged) he was in good medical condition and did not have any physical injuries.
Witness no 4: Moses Kipkorir (documentation officer at the prison) said accused was fluent in both English and Swahili and he told him that he was a form four leaver and was conversant in English.
Witness no 5: Joseph Wambugu a clinical officer at the prison also told the court accused was of good health and did not have any physical injuries. He examined him and did not find any injuries. He also complied with an order of the court to take him for further treatment at a referral hospital.
Witness no 6: Nicholas Ole Sena told the court how they arrested accused and took him to Flying Squad offices where they interrogated him for about two hours. He said accused later agreed that he was ready to make a confession and that he nominated his younger brother to be present when the recording was done.
February 20, 2019; Defence called accused to the dock. Accused gave a sworn statement. He made varied allegations including that he was tricked into signing the statement. He claimed that he was kept in a safe house for about three weeks .He said he does not know what he signed because it was written for him in English, and he was ordered to sign.
March 26 , 2019. Defence renewed their bail application.
May 16; 2019; Court’s verdict.
- On the issue of admissibility of the Confession Statement.
The court was satisfied with the confession made by the 5th. The judge said it it was admissible under section 26 of the Evidence Act, Cap 80 of the Laws of Kenya. The judge said the confession was taken in accordance with the Evidence Rules. The judge rejected allegations by the 5th accused that he was coerced, intimidated and tortured.
- Application for Review of Bail Terms.
Four accused persons- Fredrick Ole Leliman, Stephen Cheburet Sylvia Wanjiku and Leonard Mwangi – wanted their bail terms reviewed on grounds that the court has since secured testimonies from key witnesses. They had also said the case has taken too long to conclude.
To this, the court said it had considered lawyer’s arguments, submissions tabled in court and the concerns raised by the Advocate representing victims. The court said circumstances that subsisted in 2016-when they were first denied bail – are still the same. The judge said nothing has changed to warrant a review of the bail terms.
The Judge said she perused proceedings and verified that the delay was mostly triggered by the defence. Between February 14, 2017 and November 11, 2018, 37 prosecution witnesses testified.34 witnesses testified by end of 2017. She noted that 2 others testified in 2018. In 2019, 2 have testified.
On adjournments, the court observed that most were caused by the accused persons. There was a long delay occasioned by illness on the counsel for the 5th accused. Mr Muchere (for accused no 4) applied for adjournment once due to illness while Cliff Ombeta (lawyer for accused 1,
July 8; 2019 ; case adjourned after defence lawyer Cliff Ombeta failed to show up.
July 12, 2019 ; Informed court that he was not ready to proceed citing illness. Prosecution informed court the lawyer was being investigated.