A police officer has been ordered to argue his innocence in court, thwarting his attempts to bar IPOA and the ODPP from taking legal action against him, following a 2019 incident in which a scrap metal dealer was shot in the neck.
Mr. Maurice Kituyi Machani, a police officer at Langas Police Station had moved to the High Court in Eldoret, asking a decision to charge him for shooting Mr Augustino Ngugi Mbugua, be quashed.
In his petition, he also wanted the court to restrain the Independent Policing Oversight Authority (IPOA) and the Director of Public Prosecutions (DPP), from taking any legal action against him, particularly “for the events that transpired on 1st January, 2019 while the petitioner was on duty.”
The “events” are paramount to the New Year incident, when Mr Mbugua was shot and arrested, about 100 meters away from his home in Eldoret.
Read: Earlier in March this year, the High Court in Embu quashed two police officers’ attempt to evade justice after they filedd an application, hoping to stop a criminal case against them. The High Court stopped this attempt…..Read moreIPOA News, March 20, 2022
On Tuesday, November 29, 2022, High Court Judge Hon. Erick Ogolla threw out the petition saying: “The Court has already found and held that the instant petition does not disclose any constitutional issues. It would, therefore, follow that the Petitioner has not established a violation of his constitutional rights and freedoms.”
The officer had told the court that he did not wish to take plea to charges of causing grievous harm because he stood to suffer prejudice and his Constitutional Rights would be violated.
But Justice Ogolla said in his judgement: “A cursory look at the petition shows that although the petitioner merely cited various Articles of the Constitution in his heading, the petition itself does not disclose any of the said Articles and how the Respondents infringed and or breached any of the Petitioner’s constitutional rights.”
He added: “At this juncture, the Court is unable to discern any constitutional issues in the instant petition. It is further worth noting that It is not every alleged violation of a civil, procedural or legal rule which would result into a constitutional issue necessitating the filing of a constitutional petition.”
Justice Ogolla concluded: “For all the foregoing reasons, I do not find any merit in the petition. It is accordingly dismissed with costs to the Respondents.
The officer had hoped the trial at the lower court – the Magistrate’s Court – would not be admitted for trail.
Senior Resident Magistrate Hon. C. Menya had on May 17, 2022 issued an arrest warrant against him, following an investigation by IPOA.
After the New Year’s shooting Mr. Mbugua was arrested by police and charged with the offence of preparation to commit a felony and being in possession of bhang.
During the High Court petition, IPOA argued that breach of the officer’s Constitutional rights was not disclosed and that the investigation was conducted in line with Sections 5,6,7, 24 and 25 of the Independent Policing and Oversight Authority Act.
“In the course of its investigations, the 2nd rrespondent (IPOA) interviewed witnesses and also interviewed the Ppetitioner (officer) twice – on 17th July, 2019 and 11th September, 2019 – and established a water tight case,” IPOA had also told the Court.