Long road to freedom for Kenyans in Dar jail

Nairobi-based criminal lawyer Cliff Ombeta says he escaped from a Tanzanian police station and has had no desire to visit the East African country after that incident. PHOTO | FILE

Photo credit: NATION MEDIA GROUP

What you need to know:

  • Their lawyers maintain that they were “kidnapped from Mozambique by Tanzanian authorities in 2005 and illegally extradited to Tanzania.”
  • As the trial dragged on, one of the suspects, John Odongo Odhiambo died in custody

There was no time to waste. As soon as Tanzania’s Court of Appeal of delivered its ruling on July 3 to free three Kenyans who had been in jail for 15 years for robbery, lawyers quickly arranged for their exit.

William Onyango Nganyi, Patrick Muthee Mrithi, and Simon Ndungu Kiambuthi crossed into Kenya not long after the court released them and went into quarantine.

When the Sunday Nation reached out to Mr Nganyi, his family said he wanted to rest after spending 15 years in prison.

The trio was convicted for violently robbing the National Bank of Commerce (NBC) Moshi branch of Tsh5.3 billion (Sh244 million at the current exchange rate) on May 21, 2004.

Theirs is a tale of betrayal by the authorities and among themselves and their Mozambican contact, torture and killings.

The Tanzanian authorities were accused of unlawfully arresting 10 Kenyans and a Tanzanian in Maputo, a claim Dar es Salaam denied, saying the 11 were arrested at the Julius Nyerere International Airport after being brought by a Mozambican military aircraft.

Accused of robbery

Their lawyers maintain that they were “kidnapped from Mozambique by Tanzanian authorities in 2005 and illegally extradited to Tanzania.”

One of their lawyers, Cliff Ombeta, had to escape from a Tanzanian police station on the border of Tanzania and Mozambique after he was picked up from the Maputo International Airport en route to Nairobi.

He had secured the release of the 10 Kenyans, who had been accused of robbery in Mozambique, and they were waiting to board a Kenya Airways flight to Nairobi.

Before that, he had also successfully defended the 10 in Kenyan courts against extradition to Tanzania.

Mr Ombeta told the Sunday Nation that Kenyan police officers who had travelled to Mozambique to follow up the case of the 11 took away their passports. He says they were told to travel on a different airline.

“Kenyan police are the ones who handed our guys to Tanzania,” said Mr Ombeta.

Mr Ombeta says he was bundled into a van and driven to the border with Tanzania, where he was held at a station.

An opportunity arose when the police assigned to guard him got distracted.

Taxi to Maputo

“I changed clothes and wore a cap. I unlocked the door and walked out, leaving my bag, crossed to the Mozambican side and took a taxi back to Maputo,” he said.

In Maputo, he took another taxi to the South African border and crossed on foot. He then took a bus to Johannesburg from where he flew back to Nairobi.

“We had defeated the Tanzanians twice in court and they wanted to arrest me because I was defending the Kenyans,” he said.

A warrant for Mr Ombeta’s arrest issued by Tanzanian authorities still stands and the lawyer says he has no intention of going anywhere near the neighbouring country . His clients said they were tortured.

“They were subjected to beatings and torture before being charged with murder and armed robbery, among other charges,” said their lawyers Donald Deya and Evelyn Chijarira from the Pan African Lawyers Union.

As the trial dragged on, one of the suspects, John Odongo Odhiambo died in custody. Authorities said that he died of HIV-related complications but lawyers and relatives said he had been tortured.

With no end in sight, the suspects filed a case against the Government of Tanzania at the African Court on Human and Peoples’ Rights (African Court) on July 18, 2013 on the grounds that their cases at the national level had been unduly prolonged, they had been illegally extradited from Mozambique and had been tortured by Tanzanian authorities,.

When the trial court eventually rendered its decision, five of them, Michael Mbanya Wathigo, David Ngugi Mburu, Boniface Mwangi Mburu, Peter Gikura Mburu and Simon Githinji Kariuki, were acquitted. The other six, including Nganyi, Mrithi and Kiambuthi, were each sentenced to 32 years in prison. The others who were convicted were Gabriel Kungu Kariuki, Jimmy Maina Njoroge and Jumanne Kilongola, a Tanzanian national.

Appealed their conviction

Boniface Mwangi Mburu and Simon Githinji Kariuki later travelled back to Tanzania and were killed by Tanzanian authorities under circumstances their lawyers said have never been explained to them.

The five appealed their conviction.  Mr Nganyi, Mr Mrithi and Mr Kiambuthi were set free on the grounds that the prosecution and the police had mishandled the identification parades. In one of the cases, the witness was not called to testify during trial.

“We hold that the appeals by first (Mr Nganyi), second (Mr Mrithi) and fifth (Mr Kiambuthi) appellants are merited and we allow them. Thus, we quash and set aside their respective convictions and sentences, and order their immediate release from prison unless lawfully held for some other cause,” the court ruled.

With the release of the three, two more Kenyans remain in prison.

The option of a regional court is, however, a long shot as the lawyers say that none of the previous orders issued by the African Court have ever been implemented.

The Sunday Nation understands that the release of the three may not be the end of their woes, as one of them, who was once jailed in Kamiti Maximum Security Prison, has been on the Kenyan police radar.

[email protected]