KLR WEEKLY e-NEWSLETTER |
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| Issue 113| Newsletter Archive | Friday 2rd July 2010 | |
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POLICE CONSTABLE CHARGED WITH MURDER DURING POST ELECTION VIOLENCE SET FREE By Linda Awuor Ochieng – Advocate “even though all the other evidence adduced shows that the accused was positively identified at the scene of the shooting incident, and even though he was captured on film as he appeared to shoot the two victims; this court is unable to reconcile those facts with the finding by the Firearms Examiner who concluded that the fatal bullet was discharged from a gun that was different from the one which the accused had.” Republic v Edward Kirui [2010] eKLR (www.kenyalaw.org) The High Court of Kenya recently acquitted Police Constable (PC) Edward Kirui who had been accused of murder during the 2007 post election violence in Kenya, for lack of sufficient evidence. The accused, Edward Kirui, had been charged with the murder of George William Onyango and Ismail Chacha at Kondele market in Kisumu. The facts giving rise to this case are that the Orange Democratic Movement (ODM) held protests across the country to express their displeasure at the declared results of the national elections which were held in December 2007. ODM believed that they and their leader, Mr. Raila Odinga, had won the elections. The Electoral Commission of Kenya had declared that the Party of National Unity (PNU) and their leader, Mr. Mwai Kibaki, as the winners. PC Kirui was charged with shooting the accused persons during these protests. The trial began before Justice Mutungi who received evidence of 19 witnesses before retiring from judicial service. It was then taken up by Justice Ochieng, who continued hearing the case from the stage it had reached as per the requests of both the accused and the prosecution. It was PC Kirui’s case that he did not fire even a single bullet on the fateful day which was evidenced by the fact that when he renewed his firearm and ammunition, he still had the 36 rounds of ammunition that he had been issued with on 16th January, 2008. In analyzing the evidence before it, the Court first dealt with the issue of whether there was a shooting incident at Kondele. Mr. Kirui’s counsel was of the view that the prosecution ought to have called Peter Opondo, who was a Special Project Editor with KTN to replay the video caption showing the shooting before justice Ochieng as he was not the presiding judge when the video was produced in evidence. The court however held that there was no doubt at all that there was a shooting incident at Kondele as the proof was provided through a video caption, which was played before the initial presiding judge and there was no need to have the witness who had produced it, recalled. The next issue that the judge dealt with was the identity of the victims of the shooting. This arose from the fact that Kirui testified that William Onyango was actually shot at Arina estate and not Kondele and therefore he could not have been the person who had shot the deceased. The court in disposing of this issue compared the photograph of William Onyango, as shown in the photo taken in the mortuary and the pictures appearing in the video caption which showed that William Onyango was shot at Kondele. In light of that evidence, the judge was of the view that there was no merit at all in the assertion by Mr. Kirui that William Onyango was not shot at Kondele. The judge further addressed the issue of the causes of death of the victims. After carrying out the requisite examination, the doctor had arrived at the conclusion that death of both victims was as a result of gun shots. The judge also found that there could be no doubt that the person who fired at them intended to either kill them or to cause them grievous harm. In analyzing the evidence, the court came to the final issue of whether or not it was PC Kirui who committed the said murders. The judge had already made a finding that the accused had been positively identified by one of the prosecution witnesses, David Wafula Manyonge, as the person who was at the scene of the shooting incident. That being the case, the court held, it should follow that the bullet which was retrieved by the pathologist, from the body of William Onyango, should be traced back to the gun which the accused had at the material time. The accused had testified that he was issued with an AK 47 rifle “of body parts Number 08378” whose serial number was 23008378. The OCS, Kondele Police Station, Chief Inspector Kaloki, confirmed that the firearm which was recovered from the accused was No. 08378. Sergeant Isack Serem, who was one of the prosecution witnesses, was in-charge of the armoury at the Kondele Police Station, at the material time testified that the firearm he issued to the accused was an AK 47, serial Number 20008378. However, when the Firearms Examiner, Acting Senior Superintendent Johnstone Mwongera, testified, he said that the firearm which he was asked to examine was one which bore the serial No. 3008378. As that number was close to that on the gun which the accused said he was issued with, (being No. 2008378), the court carefully perused the original hand-written record of the proceedings, with a view to ascertaining if there might have been a typographical error. The judge verified that the firearms examiner made reference to serial number 3008378. The judge further perused the document that accompanied the gun and the ammunition which were given to the Firearms Examiner, for his analysis, where it was shown that he was given; ”an AK 47 rifle Serial number 3008378”. Having examined the particular gun, the firearms examiner prepared a report where he reiterated that the assault rifle he received from Inspector Gikunda, was Serial number 3008378. Having carried out microscopic examination of the bullet head which was recovered from the body of George William Onyango; in conjunction with the six bullets test-fired from the rifle serial Number 3008378, the firearms examiner formed the opinion that the bullet head was fired from that rifle. During cross-examination, the Firearms Examiner explained that firearms transferred unique characteristics to the bullets fired from them and it was thus possible for an expert to tell exactly which gun fired a particular bullet. That being the position, the court held, it meant that the fatal bullet was fired from the AK 47 rifle serial number 3008378. The court pointed out that the prosecution did not produce the rifle serial number 3008378, nor did they make any attempt to link that firearm to the accused. Making reference to Eric Akeyo Otieno v Republic, where the Court of Appeal dealt with an issue in which the trial judge had held that there had been an honest and reasonable error in recording the serial number of the gun, Justice Ochieng held that the prosecution had failed to prove that the fatal bullet was fired from the gun which had been issued to the accused. In that Court of Appeal case, which was binding on Justice Ochieng, it was held that the difference in the serial numbers of the gun issued to the accused, from the one examined by the Firearms Examiner, did give rise to a reasonable doubt about whether or not it is the gun issued to the accused which was found to have been used to shoot the victim. In conclusion, the judge held that even though all the other evidence adduced showed that the accused was positively identified at the scene of the shooting incident, and even though he was captured on film as he appeared to shoot the two victims; the court was unable to reconcile those facts with the finding by the Firearms Examiner who concluded that the fatal bullet was discharged from a gun that was different from the one which the accused had. The Court held that it had no alternative but to give to the accused the benefit of doubt because it was possible that the fatal bullet was not discharged from his gun and acquitted him. |
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Vol. CXII- NO. 65 July 2nd ,2010 GAZETTE NOTICE NO. 7380 APPOINTMENT IN EXERCISE of the powers conferred by paragraph 3 (2) (a) of the Hide, Skin and Leather Trade (Leather Development Council) Rules, 2010, the Minister for Livestock Development appoints- AMOS GICHUKI NGONGO to be the Chairman of the Leather Development Council for a period of three (3) years, with effect from 1st July, 2010. Dated the 29th June, 2010. M.A. KUTI, ![]() GAZETTE NOTICE NO. 7381 APPOINTMENT IN EXERCISE of the powers conferred by paragraph 3 (2) (a) of the Hide, Skin and Leather Trade (Leather Development Council) Rules, 2010, the Minister for Livestock Development appoints: Under subparagraph (i)- Under subparagraph(ii)- Ng’ethe Mburu Thiani; Under subparagraph (iii) Under subparagraph (iv)- Under subparagraph (v)- Simon Joshua Ng’ang’a; Under subparagraph (vi) Nalina Rupani; Under subparagraph (vii) – Charles Kalomba; Under subparagraph (viii) Under subparagraph (x)
to be a member of the Leather Development Council for a period of three (3) years, with effect from 1st July, 2010. Dated the 29th June, 2010. M.A. KUTI, ![]() GAZETTE NOTICE NO. 7382 APPOINTMENT IN EXERCISE of the powers conferred by section 6 (1) (b) of the State Corporation Act, the Minister for Agriculture appoints- PAUL ODHIAMBO ODOLA to be the Managing Director and Secretary to the Board of South Nyanza Sugar Company Limited, for a period of three (3) years, with effect from 31st July, 2010. Dated the 18th June, 2010. S.J. KOSGEI, ![]() GAZETTE NOTICE NO. 7383 IN EXERCISE of the powers conferred by section 85 (2) of the Criminal Procedure Code, and pursuant to section 260 of the Local Government Act (Cap. 265), the Attorney-General appoints- GEDION MAINGA NDUNDA to be a public prosecutor for the purposes of all cases arising under the Local Government Act, or under any by-law made by the Town Council of Kikuyu, whether under the Act or otherwise. Dated the 22nd June, 2010. S.A. WAKO, ![]() GAZETTE NOTICE NO. 7384 INTENTION TO ACQUIRE LAND IN EXERCISE of the powers conferred by section 6 (2) of the Land Acquisition Act, the Commissioner of Lands gives notice that the Government intends to acquire the following land for construction of the New Harambee House-Upper Hill. L.R. NO. Registered Owner Area to be acquired. Plans of the affected land may be inspected during office hours at the office of the Commissioner of Lands, Ardhi House, 1st Ngong Avenue, Room 302. Dated the 25th June, 2010. Z.A. MABEA ![]() GAZETTE NOTICE NO. 7385 INQUIRY IN EXERCISE of the powers conferred by section 9 (1) of the Land Acquisition Act, the Commissioner of Lands gives notice that inquiries for hearing of claims to compensation by people interested in the land required for the construction of the New Harambee-House-Upper Hill shall be held from 9.30 a.m. at the Commissioner of Lands Office, Ardhi House, 1st Ngong Avenue, Room 302 on 25th August, 2010. L.R. NO. Registered Owner Area to be acquired. Every person who is interested in the affected land is required to deliver to the Commissioner of Lands not later than the day of inquiry a written claim to compensation. All interested parties should appear for inquiries with copies of the following: PIN No. or Certificate of Incorporation, and Title Deed to confirm ownership. Dated the 25th June, 2010. Z.A. MABEA, ![]() GAZETTE NOTICE NO. 7341 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED CONSTRUCTION OF A TEA FACTORY ON L.R. NO. 18539 IN NANDI HILLS INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the proposed construction of a tea factory. The proposed project will include: A factory building; Stores; Boiler room; Wood shed; Parking; and waste water treatment dam. The project is located on L.R. No. 18539 in Nandi Hills, Rift Valley Province. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN, ![]() GAZETTE NOTICE NO. 7342 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED RESIDENTIAL ESTATE DEVELOPMENT ON PLOT L.R. NO. 12422/21 LOCATED IN MUTHAIGA NORTH, NAIROBI INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the proposed residential estate development. The proposed development will comprise construction of 183 residential units each with a ground floor containing Guest bedrooms, Lounge, Kitchen, Dining, Servants Quarter, vehicle parking, Bathrooms, cloaks and cooking space and the first floor containing 1 master bedroom, 2 other bedrooms, lobby, balcony, bathrooms and other partitions. The plot to be developed which is approximately 7.953 hectares is located in Muthaiga North, Nairobi Province. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 7343 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED CONSTRUCTION OF A GATED COMMUNITY OF LOW COST HOUSING PROJECT COMPRISING 20 BLOCKS OF 10 FLOOR EACH, CONTAINING A TOTAL 800, TWO-BEDROOMED LOW COST APARTMENTS WITH ASSOCIATED PARKING SPACES, COMMUNITY/RECREATION AREA AND BOREHOLE, ON PLOT L.R. NO. 209/5533/1, AT THE JUNCTION OF BONDO STREET AND NGIYA ROAD, OFF JOGOO ROAD, SHAURIMOYO ESTATE, NAIROBI INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the proposed construction of low cost housing project. The proposed project activities will include construction of a gated community of low cost housing project comprising 20 blocks of 10 floors each, containing a total 800, two-bedroomed Low cost apartments with associated parking spaces, recreation area and borehole. The plot size is 7.56 acres. The proposed project will be located on plot L.R. No. 209/5533/1 (currently bat village) at the junction of Bondo Street and Ngiya road off Jogoo road, Shaurimoyo Estate, Nairobi. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 7344 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED NANYUKI-MERU, ISHIARA-KIENI, MWINGI-KITUI-WOTE-SULTAN HAMUD 132 KV TRANSMISSION LINE INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the proposed Nanyuki-Meru, Ishiara-Kieni, Mwingi-Kitui-Wote-Sultan Hamud 132 KV Transmission Line. The project will entail construction of power lines comprised of electrical conductors supported on 27 metre high pylons constructed of stainless steel metal. Close to 1000 steel towers (pylons) comprising both angle towers and line towers will be constructed for purposes of mounting the conductors on which the 132 kV power supply will be transmitted. The project will require a 30-metre wide Right of Way (ROW) corridor along the entire routes of traverse implying that about 792 ha of land will be acquired for the project. Further, all physical structures and trees growing above 7m height will be cleared in line with requirements of the KPLC. The proposed site starts at the boundary of the Rift Valley Province at Nanyuki in Laikipia East District and traverses a total of 14 Eastern Province Districts to end at Sultan Hamud Town on the boundary of Rift Valley Province. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 7710 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED FUEL SERVICE STATION IN GARISSA TOWN ON LR/NO: GARISSA TOWN/BLOCK III/430 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the service station. The proposed Project will comprise of service station, restaurant, mini-mart, station office, lubricants/spare parts shop, store and a service pit. In addition, such facilities will go along with waste water system-septic, soak pit, and storm water drain. Toilets for both genders will be availed and shower room as well. There will be three pumps, two for diesel and one for petrol. The proposed service (fuelling) station will be located in Garissa Town on plot LR/No; Garissa Town/Block 111/430. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO. 7711 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED PETROL STATION ON L.R. NO. BLOCK 3/14/15/16 NYAMBERA, KISII TOWN INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the proposed petrol station. The proposed development will comprise of a petrol station with the following facilities: Four underground fuel tanks; a pumping bay of four pumps and three pump islands; a main office which has a shop, sales area, store, drop area, gas cage and compressor room; toilet facilities with a changing room; a car wash; an oil interceptor; tyre centre; service bay; a mini-supermarket; a cafeteria and a parking area. The proposed 1.06 acres development site is located on the industrial area of Kisii Town along Daraja Moja – Nyambera-Daraja Mbili road. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO. 7712 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED PETROLEUM DEPOT ON PLOT NO. NAIROBI/BLOCK 97/9, 50, 51, AND 105 ALONG OUTERING ROAD EMBAKASI INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the proposed construction of petroleum depot. The proposed project will entail development of a Petroleum depot which will include installation of five above ground tanks with a capacity of 90M3 each for Automotive Diesel and Illuminating Kerosene only, a loading gantry, offloading area, fire fighting system and related offices. The project is located on L.R. Nos Nairobi/Block 97/49, 50, 51 & 105, along Outer Ring Road Nairobi. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 7714 LEVY OF RATES 2009 IN EXERCISE of the powers conferred by section 15 of the Rating Act, the County Council of Marakwet with the approval of the Deputy Prime Minister and Minister for Local Government has revised the land rates as follows: Type of land Old rates per acre New rates per acre The rates due from 1st January, 2009 Dated the 28th May, 2009. J.A ADERO, ![]() SUPPLEMENT NO. 41 The Offices of Minister Act, 2010
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Kenya Law Weekly Issue 113/2010
2 July 2010
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