In January 2020, the Director of Criminal Investigations (DCI) notified Kenyans that after a ‘thorough investigation process,’ they had finally arrested Mr. Cyprian Nyakundi and Mr. Emmanuel Ong’era for attempting to extort Victoria Commercial Bank as contrary to Section 300 (1)(a) of the Penal Code. The DCI further disclosed that the duo had already parted with KSh 1 million as a down payment from a total of KSh 17.5 million.
@DCI_Kenya Detectives based at Gigiri have today afternoon arrested two suspects namely Cyprian Andama Nyakundi and Emmanuel Nyamweya Ong’era after successful investigations touching on extortion, blackmail and false accusations.— DCI KENYA (@DCI_Kenya) January 20, 2020
In what was a well-coordinated sting operation, mahakamani news has since learned that the DCI was in cahoots with a certain Indian director of Victoria Commercial Bank, local media stations, local journalists, and a drug-linked powerful person. That the DCI had managed to do their part in arresting the duo and planting evidence as revealed in Constitution Court Petition No. E284 of 2020.
However, it was a reprieve for the duo when the High Court on March 11, 2021, ruled in their favour stating that evidence obtained by the DCI was illegally done so and consequently the ‘strong’ Criminal Case that the Director of Public Prosecution (DPP) had formulated against the petitioners was quashed. Furthermore, the DPP was prohibited from continuing with Criminal Case No. 144 of 2020.
The succinct judgment delivered by Justice A.C Mrima caught everyone by surprise. The judge declared that ALL the evidence intended to be relied on by the DPP had been obtained through entrapment and so it was repugnant and inconsistent with Article 50(4) of the Constitution of Kenya, 2010.
Article 50(4) of the Constitution of Kenya states that: Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.
So how were the accused entrapped?
By the Black’s Law Dictionary definition, entrapment is an act where a law enforcement officer or a government agent induces a person to commit a crime by means of fraud or undue persuasion, in an attempt to cause a criminal prosecution against that person.
In this instance, the DCI induced the duo into committing the crime and used that evidence to prosecute them. The crux of the criminal case was occasioned by an alleged ‘investigation’ initiated against the petitioners from a series of website blog-posts written by Cyprian Nyakundi.
In the blog posts, Mr. Cyprian Nyakundi had put Victoria Commercial Bank into scrutiny for their alleged involvement in many illegal schemes such as money laundering.
(In fact, in January 2020, Victoria Commercial Bank via an international law firm of high repute issued a demand letter to Mr. Nyakundi stating that he should pull down his blog posts about Victoria Commercial Bank else risk a defamation suit).
In the court documents, Mr. Nyakundi states that on November 23, 2019, the police had attempted to charge him over a complaint laid by one Harish Mawjee. The complainant was in disagreement with certain blogposts concerning Victoria Commercial Bank that Mr. Nyakundi had published on his website. However, in a turn of events, the DPP declined to approve of the charges for Criminal Defamation and publication of false information for reason that they were unconstitutional as per the judgment in Alai v Attorney General. Consequently, Corporal Charles Odhiambo wrote to the Communications Authority of Kenya for the preservation of the blog page.
On January 3, 2020, Mr. Nyakundi published a new blog post concerning Mr. Yogesh Pattni, the CEO of Victoria Commercial Bank (VCB). As a result, Mr. Pattni contacted Dharmesh Shah about the blog posts. The latter then contacted one Nuri “Tinta” Akasha, reportedly a relative of the infamous Akasha Brothers jailed in the US for drug-trafficking crimes.
Nuri Akasha was tasked with initiating contact with Mr. Nyakundi. Instead, he contacted the same Corporal Charles Odhiambo on January 9, 2020, seeking advice on the way to go about the whole issue. The police officer informed Nuri Akasha to contact Mr. Nyakundi for purposes of providing Victoria Commercial Bank’s side of the story.
On January 10, 2020, Corporal Odhiambo contacted Nicholas Asego – a Standard-Group-based journalist. From the witness statement of the journalist, Mr. Charles Odhiambo was his good friend. Furthermore, that Mr. Odhiambo requested him to help him in the sting operation. His role would be to induce Nyakundi into a setup where he would allegedly be offered money in return for pulling down his ‘defamatory’ blog posts.
Mr. Asego was able to trace Mr. Nyakundi through a cellphone number registered as Emmanuel Ong’era. Additionally, that he shared the number with the DCI who forwarded it to Nuri Akasha.
Court documents further reveal that the DCI, Nuri Akasha, and one Sammy held consistent meetings planning on how to best execute the sting operation. On January 12, 2020, Nuri Akasha, Sammy, and Dharmesh Shah held a meeting with Mr. Nyakundi. Acting on behalf of Victoria Commercial Bank, Dharmesh Shah asked Mr. Nyakundi to state his price. That the Victoria Commercial Bank had sent him to know how much money Mr. Nyakundi needed to pull down the blog posts and cease from publishing any further blogs about the bank and its CEO.
Mr. Nyakundi stated that he would need KSh 30 million. After a series of haggling, Nuri Akasha and Sammy managed to lower the amount to KSh 17.5 million. However, sensing malice, Mr. Nyakundi requested a meeting with the CEO of Victoria Bank for several purposes inter alia clarifying the genuineness of the allegations he had about him made on his blogpost.
A subsequent meeting between the four was later on organized in a boardroom in which Mr. Nyakundi opines had been fitted with secret surveillance cameras from the DCI. It is during this meeting that they reached a consensus ad idem. It was agreed that the CEO of Victoria Commercial Bank was to deliver the payment to Mr. Nyakundi on January 20, 2020.
On a material day, Mr. Nyakundi and Mr. Ong’era were arrested on the 3rd Floor of Westgate by DCI officers stationed at Gigiri Police Station. The arrest was done immediately after the two had been handed over KSh 1 million in a small black shopping bag. Also, in the precincts were Nuri Akasha and Sammy (in the presence of the DCI officers). The events of that day clearly show that indeed there was a sting operation taking place.
UPDATE: Bloggers Cyprian Nyakundi and Emmanuel Ong’era arrested for alleged extortion, blackmail and false accusations.— NTV Kenya (@ntvkenya) January 20, 2020
“The 2 had just received KSh 1M (down payment of KSh 17.5M) from a victim as precondition for pulling down libellous posts on a website” ~ @DCI_Kenya pic.twitter.com/Ph3u8waP6r
According to Corporal Charles Odhiambo, he had been instructed by his seniors to investigate a complaint against Mr Nyakundi over the blog posts. That in October 2019, he initiated the investigations against Mr. Nyakundi. The Investigating officer further added that he was not aware of demands of money by any of the parties. However, he was later made aware that Mr. Nyakundi demanded Ksh 17.5 million to stop further publications. He confirmed that police officers set up secret cameras at the venue where the parties were to meet and conclude the payments.
Finally, in a not-so-shocking confession, Mr. Odhiambo stated that they acted within the law in discharging their duties. That they did nothing wrong and followed due process.
In arriving at the judgment, the court used a three-step test. The test would measure the timing the nature and extent of involvement by the investigators.
According to Justice Mrima, Corporal Odhiambo was involved in the sting operation. He was the instigator when he advised Victoria Commercial Bank and its agents to “bring Mr. Nyakundi to the table.”
In his judgment, Justice Mrima castigated the police for instigating investigations without a clear complaint. Categorically, he questioned the intention of the Investigating Officer who earlier on but for the DPP had already made up his mind on charging Mr. Nyakundi. In dismissing the genuineness of Mr. Odhiambo, he reprimanded him for setting up secret cameras of which he intended to use the evidence in prosecuting Mr. Nyakundi. Finally, the judge summed up the whole ordeal:
“In essence, had it not been Corporal Odhiambo advising, linking up Nuri with the Petitioners and being firmly behind the whole encounter, there is no evidence that the Petitioners would have nevertheless taken any steps to commit the offence…. The Upshot is that the DCI was at the centre of the whole matter.”
The judge asserted that the DCI took an active role from the inception to the arrest of the petitioners to entrap them long before a formal complaint had been laid to the police. Therefore, the upshot is that the involvement of the police was out of the ordinary. That the police went far beyond the limits of acceptable police conduct and investigations and right into the realm of entrapment.
Consequently, all the evidence to be relied on was obtained from the sting operation where entrapment is a complete defense.
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