What you need to know:
- In his arguments, Prof Ojienda said there were “historic occurrences where Mr Osewe accosted Mr Mboya, alleging he was having an affair with his wife”.
A trader accused of attempting to kill city restaurant owner William Osewe, allegedly over a love triangle, has pleaded for acquittal, saying he acted in self defence.
Senior counsel Tom Ojienda Monday urged Milimani Chief Magistrate Martha Mutuku to acquit Tom Mboya for this reason, following an incident at a hotel along Thika Road on December 1, 2016, in which he shot Mr Osewe.
Mr Osewe is owner of the popular K'Osewe Ranalo Foods along Kimathi Street, Nairobi.
In his arguments, Prof Ojienda said there were “historic occurrences where Mr Osewe accosted Mr Mboya, alleging he was having an affair with his wife”.
He cited a court case where Mr Mboya was allegedly threatened by Mr Osewe “with the possibility of elimination”.
“Long term friend”
The magistrate was also asked to consider the circumstances prior to the shooting and the fact that Mr Mboya personally reported the incident at Kasarani Police station.
“Would he have reported the incident if he had an intention to kill him? He would have gone into hiding.”
Prof Ojienda also urged the court to take into account the exculpatory grounds and the repeated provocation.
He said there was an uncomfortable feeling between Mr Osewe and Mr Mboya since the former felt the latter was too close to his wife and “that was the [reason why] Osewe accosted the accused”.
“Your honour, the choreography of the happenings which led to the shooting of Mr Osewe was an [unintentional] act of the accused, Mr Mboya,” he said, noting that his client was having lunch at Argon Restaurant when Mr Osewe suddenly appeared.
The lawyer said that when “Mboya saw Osewe, he knew he was finished”.
“He knew he was going to get killed. He knew he was dead,” Prof Ojienda said, adding "that is the reality here".
He urged the court to find that his client did not intend to murder his “long term friend” and also noted that both of them owned guns.
However, Mr Osewe interjected, saying the accused was not his friend.
“He was not my friend. I had employed him as my driver. We were never business colleagues,” he said.
Prof Ojienda went on to tell the court that the accused said a watchman at the restaurant testified that both men aimed guns at each other after a quarrel ensued.
Mr Osewe interrupted the session once more, saying: “Your honour, I did not have a gun. I did not shoot at Mr Mboya.”
Prof Ojienda then noted that his client had many rounds of ammunition but did not fire at Mr Osewe, who had already fallen, “showing he did not have the intention to kill him”.
He also told the court that the prosecution had not proven the attempted murder case.
But state prosecutor Anderson Gikunda urged the court to convict Mr Mboya as “he attempted to kill Osewe”.
Mr Gikunda said Mboya thought he had “murdered Osewe” and that this was why he rushed to report the incident in Kasarani.
If found guilty, Mr Mboya will get a life imprisonment sentence for attempted murder.
It is alleged that Mr Mboya shot Mr Osewe over a woman named Stella Mutheu. He is accused of trying to kill Mr Osewe and another man, Wilfred Ombunya Tembula.
He pleaded not guilty in 2017 and was released on a cash bail of Sh300,000.
The court will issue its ruling in the case on August 7.