On Monday, July 12, 2020, four persons were brought before Senior Resident Magistrate Jane Kamau of the Milimani Law Courts. The four persons namely Kebor Omar, Verah Osebe, Anasteni Manji, and Diana Moraa were apprehended by police officers on Friday, July 9, 2020. According to media reports, the suspects had organized a house party in Kilimani to commemorate the life of a Nigerian who died after apparently jumping off the 7th floor of a certain apartment. However, the party soon turned tragic after one man mysteriously died in his Kitchen under unclear circumstances.
Appearing before the court, Corporal Phillip Bett of DCI Kilimani filed a notice of motion based on Article 49 (1)(f) of the Constitution of Kenya, 2010. He pleaded with the court to detain the respondents for 14 days. The application was supported on the following grounds:
1. The respondents were arrested on Friday, July 9, 2021, following a report made that a dead body of an unknown African adult man was found on the ground floor of Kings Distinction Apartment along Batians lane off Argwings Kodhek Road.
2. That the respondents are linked with said death of the unknown African male as they had organized and participated in a house party at house number 1302 of the said apartment.
3. Once the death report had been made, officers from the Kilimani police station rushed to the scene and found out that other revelers at the party had left the scene save for the respondents.
4. That the body of the unknown African adult man had been moved to Nairobi City Mortuary awaiting identification and post mortem analysis.
The officer further informed the court that once the investigations commenced, the first respondent introduced himself as a Nigerian citizen. However, he failed to back his statement with an Identification document. Consequently, investigators are pursuing the Federal Republic of the Nigerian High Commission with the view of verifying the details.
Mr. Phillip Bett also contended that the reason for seeking the custodial order is for the respondents to aid the investigators in locating and apprehending the other revelers who escaped. However, he said that other witnesses are still coming forward and an identification parade is set to be conducted.
Furthermore, the DCI officer argued that the respondents would have to be taken to Mathari mental hospital for a mental assessment. They informed the court that the exercise only occurred on Mondays and Tuesdays. Lastly, the police officer stated that the respondents would face a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.
Counsel representing the first respondents argued that the victim was not a perpetrator of the said crime. Additionally, at the point of the arrest of the 2nd, 3rd and 4th respondents, the 1st respondent was taken to hospital (having been subject to the same drugs that had killed the deceased). Furthermore, upon gaining consciousness at the hospital, where he had been admitted for 2 days, the 1st respondent was arrested and taken to the cells. He did not get time to mourn his friend.
Also, counsel further presented that the deceased held the 1st respondent’s physical passport albeit that he managed to furnish a digital passport. Counsel additionally stated that the Nigerian High Commission will officially communicate about the 1st respondent’s identification within 24 hours. Finally, the counsel informed the court that the first respondent was in the country illegally and thus he requested to be charged with the offense of being illegally within the country.
Counsel for the second respondent argued his client had been under police custody since Friday, July 9, 2020. Furthermore, he opposed the custodial order application contending that it was prejudicial for the police to take 14 days verifying a vehicle’s identification numbers and ownership whereas it was a process that normally takes less than 30 minutes.
Appearing for the 2nd, 3rd, and 4th respondents, South Mugirango Member of Parliament, Mr. Sylvanus Osoro stated that he would rely on the Notice of Motion point No.5 on the element of post mortem. He disputed the application from the prosecution stating that the application was to help the investigators conduct a post mortem, a process that the 2nd, 3rd, and 4th respondents had no control of as it was within the ambit of the government. Additionally, Mr. Osoro stated that the respondents were among the revelers of unknown numbers and that it would be prejudicial to detain the respondents until they could identify the other revelers.
On the presumption of flight risk, the Jubilee party-linked legislator stated that the 2nd, 3rd, and 4th respondents were Kenyans and not foreigners. That their identities were known as provided by the applicants. Furthermore, this was confirmed by the fact that they were picked at the crime scene as secured by the police officers. He also confirmed that although the respondent did attempt to flee from the crime scene, they could not run away. Therefore, it was enough reason for the willingness of the respondents to cooperate with the criminal justice system.
Finally, the legislator averred that the respondents could not interfere with witnesses as no one had been identified by the applicant as a witness in the first place. Lastly, the Counsel also reminded the court that the CCTV footage was not in the control of the 2nd,3rd, and 4th respondents because they had no direct relationship with both the apartment owners and providers of the CCTV footage. He closed by stating that the 14-day window sought by the applicant to take fingerprints was impractical, opposing entirely the application as there was no necessity for detaining them. Furthermore, because of the Covid -19 health and safety protocols, a two-day detention window was the maximum days necessary.
In rebuttal, Mr. Phillip Bett reminded the court that someone was dead. He said that the police suspect that indeed the 1st respondent was drugged and admitted to the hospital whereas no medical documents had been tabled before the court or forwarded to the Investigating Officer. Moreover, even though the 2nd, 3rd, and 4th respondents were Kenyan citizens, no specific information regarding their specific places of abode was shared with the police hence they remain a flight risk.
In the ruling given, the Senior Resident Magistrate Jane Kamau directed the police to detain respondents for 10 days. The window would give investigators time to verify witnesses, places of abode, motor vehicle ownership and tracking of owners, identification of the 1st respondent, mental assessment, post mortem, and CCTV footage. The Magistrate further ruled that the investigations team required time to finalize the matters before charging or releasing the respondent. In this regard she also noted that the respondents have a right of appeal.
The case will be mentioned on July 22, 2021, before the duty court for further orders.
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