The high court in Meru has quashed a petition that sought to block prosecution of officers based on the Independent Policing Oversight Authority (IPOA) investigations.
This means that the Director of Public Prosecutions can now proceed to charge the two officers with murder and causing grievous harm.
Two police officers John Olima and Urbanus Kivilu attached to Gathong’ora and Githongo Police Stations respectively, filed the petition after a man was shot dead and another injured during an alleged robbery on March, 12, 2016.
They said that they had answered a distress call by a watchman who had allegedly been accosted by robbers while on the way from Kangeta and Muringene police posts to pick prisoners and that in their bid to rescue the watchman, they shot the two, killing one.
The two claimed before Justice Edward Muriithi, that the Director of Public Prosecutions had recommended that they are prosecuted, a situation they said, would infringe on their right to fair administrative action.
They also claimed in the petition filed in 2020, that their arrest was in contravention of the principles of the constitution and that it had already been 6 years since the incident and that the delay by the ODPP and their pending arrest was in contravention of the principles of the constitution.
In its defense, the ODPP reiterated that IPOA acted within the law, as its mandate include investigating of any complainants related to disciplinary or criminal offences committed by any member of the National Police Service.
IPOA in its submission said that it had acted on its own motion to investigate the matter after a media report. The Authority stated that officer Urbanus Kivilu shot and killed David Kirimi and injured Edward Kimathi. All along, the officer was in the company of John Olima whom the DPP recommends, should be charged with the offence of assessor to murder.
IPOA had forwarded their findings to the DPP recommending prosecution. DPP said that upon perusal of the findings and recommendations of IPOA, it independently made a decision to charge the Petitioners with the offence of murder of David Kirimi and another charge of grievous harm of Edward Kimathi.
The Authority argued that the two police officers had failedto demonstrate how their rights had been infringed by the intended prosecution.
The deceased’s mother Sarah Mwakairu told the court that by filing the petition, the two police officers were attempting to forestall the rights of her family to access justice following the death of her son.
The court stated that the Petitioners did not demonstrate any violation of the Constitution by the DPP, which has the discretion on the decision to charge, and that IPOA acted within its mandate to investigate the death and grievous harm.
Further, the court acknowledged that IPOA actually did accord the petitioners an opportunity to be heard in the course of its investigations.
The court further said that the two petitioners had failed to demonstrate how the DPP acted contrary to public interest, the interests of administration of justice, or failed to prevent and avoid abuse of the legal process.
“It is therefore in the interest of administration of justice that the intended criminal case be promptly instituted and heard on merits,” Justice Edward Muriithi ruled.