Janet Waiyaki case: Two police officers found guilty of causing grievous harm to driver

Two police officers serving a seven-year sentence for the murder of Janet Waiyaki at City Park in 2018 have been convicted of causing grievous harm to her driver, Bernard Chege, ahead of their sentencing on Wednesday.

Godfrey Kipng'etich Kirui and William Korir Chirchir had been charged with attempted murder over the shooting of Bernard Chege Gathima on his right hand and shoulder on the same day they shot and killed Janet Waiyaki on May 20, 2018, at City Park.

Milimani Chief Magistrate Susan Shitubi ruled that two superior courts had concluded that what transpired on the fateful day was manslaughter; thus, there was no way her court would conclude that the same transaction resulted in the attempted murder of Chege.

"When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it. I therefore invoke section 179 (2) of the CPC and find the accused persons guilty of the offence of Grievous Harm contrary to Section 243 of the Penal Code and convict each accordingly," the Magistrate ruled.

She further found that while the evidence availed in court could not point to the gun which fired the fatal shot, and both of the officers' firearms were used with none distancing themselves from the killer bullets or presented evidence to exclude their gun from the injuries that caused the death of the deceased, it was safe to conclude that the two officers injured the complainant and caused him grievous harm.

"There was no justification. This is a person who was driving, escaping the officers. He was not a threat. The claim that they just shot deflating the tyres was dismissed by the witnesses. The gunshot holes were on the rear part of the vehicle, not on the tyres. I am satisfied that the offence of grievous harm under section 234 of the Penal Code is proved," she added.

The two will be sentenced on Wednesday.

The ruling comes days after a Court of Appeal declined to interfere with the seven-year prison sentence given to the two officers for the fatal shooting of Waiyaki seven years ago.

The High Court in Milimani had in 2021 found them guilty of the lesser charge of manslaughter.

In her ruling, Justice Stellah Mutuku said she had been persuaded to give the accused persons the benefit of doubt that their intention was not to kill Waiyaki, even though it was clear that they acted against the law.

"This brings me to the conclusion that the offence proved by the evidence before me is that of manslaughter and not murder by didn't of absence of the element of malice aforethought or mens rea. I will and do hereby invoke section 179 of the Criminal Procedure Code that gives power to the court to convict an accused person on a minor offence where the major offence charged and the minor offence are cognate," she ruled.

In the appeal, the ODPP had requested the court to enhance the sentence to 20 years, but the three-judge bench appointed to handle the matter ruled that "in the circumstances under which the killing occurred, the seven-year sentence was not too lenient to warrant their interference."

The shooting occurred during the 2018 Ramadhan season, when intelligence reports had indicated that al-Shabaab and ISIS were planning terror attacks on government installations.

In a bid to beef up security in the CBD, the two officers from Central Police Station were randomly selected and assigned to man areas in Nairobi, including the City Park and ordered to counter terrorism threats.

On their first day of deployment, in their random patrol, they were approached by a man who introduced himself as the caretaker of City Park, who reported that there was a suspicious motor vehicle, a black Toyota Fielder with tinted windows, which had remained parked near the Memorial Park for quite some time, raising concern.

The vehicle, according to witnesses, had driven to the park at high speed and parked at the fence of the Murumbi graveyard at about 8:30 am.

The officers approached the vehicle, but it suddenly drove off at high speed, prompting them to shoot. In the end, the car landed in a ditch, and the driver opened his window in surrender. It was then that Waiyaki was discovered seated in the back seat with gunshot wounds; she was pronounced dead upon being taken to the hospital.

A doctor's report said Chege sustained a surgical wound on the chest, a laceration on the right lung and a scar on the left side of his shoulder that prompted his admission at Avenue Hospital.

"The degree of injury was grievous harm," the court heard.