Ipoa wants police linked to Covid curfew murder of boda boda rider prosecuted

Police officers force ferry passengers to sit on the ground while enforcing the dusk-to-dawn curfew in Mombasa on March 27, 2020.

Photo credit: File | Nation Media Group

The Independent Policing Oversight Authority (Ipoa) wants an application by five police officers seeking to quash a decision to charge them for the alleged murder of a boda boda operator during enforcement of Covid-19 rules in 2020 dismissed.

Through an affidavit filed by Mr James Njuru, Ipoa's lead investigator in the case, the agency says that it is only fair that the trial against the officers based at Inuka police station in Likoni proceeds.

“The applicants (officers) will have the opportunity to demonstrate their innocence (if at all) at the criminal trial court,” said Mr Njuru, noting that the accuracy and correctness of evidence or facts gathered in the investigation can only be assessed in court.

The officers -- Peter Kiio, Muna Mohamed, Justus Wafula, Paul Wagwa and Ayub Otieno -- are accused of murdering Mr Hamisi Juma in Mombasa in March 2020 and had been summoned for plea taking on January 25.

His family had alleged that he was beaten by the officers after dropping off a pregnant woman at Mwahima Hospital. He died some days after the alleged encounter.

The High Court temporarily halted the plea taking process after the officers filed an application seeking to be allowed to challenge the decision by the Director of Public Prosecutions and Ipoa to charge them.

However, Ipoa now says that by raising defences in their application at the High Court, the policemen are seeking to usurp the role of the trial court, thus amounting to an abuse of the court process.

The oversight agency says that the officers have neither demonstrated that it has a vendetta against them nor shown whether it has interfered with the discharge of their constitutional mandate.

According to Ipoa, the officers have also not demonstrated that in undertaking investigations and arraigning them in court, it has alongside the DPP acted in excess of the powers conferred upon them by the law. 

It further argues that the officers have not demonstrated any grounds to grant of the orders they are seeking, adding that their application is meant to hinder the family of the deceased from enjoying their right to access justice.

“I believe the application has been filed in bad faith, is misconceived and an abuse of the court process meant to defeat the cause of justice,” states Mr Njuru.

In their application, the officers want to be allowed to apply for several orders including a declaration that they did not have any pre-meditated involvement in the death of Mr Juma.

The officers allege that they have been unjustly charged with the murder without the existence of any substantial evidence. They also argue that it would be prejudicially unreasonable for the DPP and Ipoa to prefer murder charges against them as a consequence of discharging their constitutional and legislative duties.

“Further, the preference of the charges did not consider the recommendation of an inquest into the matter to shed more light,” the officers argue in their case documents.

Additionally, the police officers claim that Ipoa's motive is its financial benefit from taxpayers and donors and not in the interest of justice.

“It is unfortunately irrational for Ipoa to instigate and champion for the applicants to face murder charges to their (policemen's) detriment to the benefit of Ipoa for monetary and financial gain,” argue the officers. 

They say that on March 27, 2020, they were deployed to enforce a nationwide 7pm curfew along the Likoni-Diani highway. According to them, they heard a loud bang behind them during their patrol and upon keen observation from a distance, they saw lights from a motorbike that had overturned and a person who had fallen beside it. 

“The unknown person got up and fled before the officers could get to him and the applicants proceeded with their patrol,” said the officers, adding that they continued work without any incident.