Attempted murder charges against Babu Owino dropped, but...

Embakasi East MP Babu Owino has agreed to buy an apartment for the family of Mr Felix Orinda, popularly known as DJ Evolve; in exchange, attempted murder charges against him have been withdrawn.

In a ruling rendered by court Tuesday, the MP will also pay the medical bills and expenses of the victim. The victim was the principal witness.

“As a condition of withdrawal, the MP will purchase an apartment for the victim, which will resolve the issue of house rent, and continue paying the hospital bills of the victim who comes from a humble background,” said Senior Principal Magistrate Bernard Ochoi.

On financial losses, the magistrate noted that the apartment will reasonably take care of the issue as the rental burden will no longer trouble the victim’s family. The court said the MP has been paying for the engagement of a medical specialist at the Nairobi Hospital.

A report by the probation department indicated Mr Orinda is from a humble background and cannot pay for specialised care. The magistrate allowed the victim’s request to withdraw the case, and acquitted Mr Owino, following a finding that the Office of the Director of Public Prosecutions (ODPP) had also agreed to the proposal.

Mr Ochoi said the concerns raised earlier by the ODPP on the welfare of the victim appeared to have been covered in the mediation.

“I have come to the conclusion that this is a matter [in which] a court should encourage reconciliation as envisaged in the Constitution and, therefore, I will allow the request to withdraw the charges against the accused in count one – attempted murder. He is acquitted,” said the magistrate.

However, as regards the second count, where the MP is charged with behaving in a disorderly manner while carrying a firearm, the charges can only be withdrawn by the DPP. This means he will likely be tried for the offence.

The lawmaker was accused of attempting to kill DJ Evolve by shooting him in the neck at B Club in Kilimani, Nairobi, on January 17, 2020.

Motivation

After Mr Owino was charged in court, Mr Orinda sought to withdraw the charges, but the DPP opposed the move, saying the withdrawal should be conditional. In his application for withdrawal, DJ Evolve had said that after consultation with his family, they had agreed that he concentrate on his health rather than the case.

In a letter dated September 21, 2020, and addressed to the DPP and the court’s executive officer, the victim and his family indicated that the case was affecting his healing given his divided attention. The letter was accompanied by an instruction note bearing a thumbprint against the name Felix Orinda and an affidavit sworn by Mr Orinda and signed by way of a thumbprint.

Stating that the window of engagements (out-of-court settlement) between the parties was still open, the magistrate said they must come out openly and provide details.

Prosecutors Jacinta Nyamosi and Joseph Riungu asked to be granted more time to consider the nature of the letter.  They told court they needed time to find out the motivation behind the victim’s intention and whether the path of Alternative Dispute Resolution was appropriate.

The letter was accompanied by an instruction note bearing a thumbprint against the name Felix Orinda. There was also an affidavit sworn by Mr Orinda, who signed it by way of affixing his thumbprint.

The letter was signed by the victim’s parents, Johannes Orongo Odhiambo and Mary Adhiambo Hongo.

In the letter, the family said it had been on an intense deliberation on the need to allow the complainant to concentrate on his treatment rather than the pending criminal case against the MP.

They said the case was affecting his healing. The letter stated that the family had repeatedly been in communication with the complainant, who had “categorically expressed his very considered position that he did not want the case to continue”.

The victim and the family’s lawyers told the magistrate that the wishes of the victim should be respected.

They added that settlement out of court is allowed in law for any offence and the case being a public interest one did not preclude the matter from being withdrawable for an out-of-court settlement as all cases were equal before the law.

However, the prosecutors said they wished not to respond to the victim’s intention immediately since they needed to better understand what informed his decision.

The prosecutors also said they needed a medical assessment report to determine Mr Orinda’s capability to give instructions.

However, Article 157 of the Constitution enjoins the DPP to exercise the powers with due regard to public interest, interest of administration of justice and the need to prevent and avoid abuse of office of the legal process.

The magistrate freed the MP on the attempted murder charge, and now the DPP will act on the remaining charge.

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