PROCEDURE FOR CRIMINAL LITIGATION OF POLICE OFFICERS.

1.Protection from personal liability.

Police officers are protected from personal liability by virtue of Section 66(1) of the National
Police Service Act 11A of 2011.This protection however, only applies if the act was done in
good faith and for the performance and execution of the functions, powers or duties of the
Service. However, a person can still take legal action against the Inspector-General for a specific
act or omission mentioned in subsection. This is allowed if the person can prove to the court that
the police officer or another individual involved would be liable for the act or omission if not for
the restrictions outlined in that subsection.1

2. Agencies involved in the criminal litigation of police officers.

a) Office of the Director of Public Prosecutions (ODPP).

Article 157 of the Constitution of Kenya establishes the Office of the Director of Public
Prosecutions (ODPP). According to Article 157(6)(a), the ODPP is granted the authority to wield
state powers in prosecution. It is empowered to initiate and conduct criminal proceedings against
any individual in any court, excluding a court martial, for offenses alleged to have been
committed.

b) Independent Policing Oversight Authority (IPOA).

This is established by The Independent Policing Oversight Authority Act No. 35 of 2011. IPOA
is mandated to ensure police accountability to the public by enforcing Article 244 of the
Constitution, which emphasizes police professionalism, discipline, transparency, and
accountability. Additionally, IPOA is tasked with providing independent oversight of the
Service's handling of complaints.

c) National Police Service (NPS)

Article 243 of the Kenyan Constitution establishes the National Police Service (NPS).
Subsequently, Section 35 of the National Police Service Act, No. 11A of 2011, assigns various
functions the Directorate of Criminal Investigations (DCI), including investigating serious

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National Police Service Act 11A of 2011.Section 66(1) and (2)

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crimes like terrorism, detecting and preventing crime, apprehending offenders, and carrying out
any other functions specified by additional written laws.

d) The Internal Affairs Unit (IAU)

The Internal Affairs Unit (IAU) is a section within the National Police Service created by
section 87 of the National Police Service Act. Its primary mandate is to receive and investigate
complaints against the police. Sub-section 7 specifies that the Unit must operate from a distinct
office separate from the rest of the service.

e) The Witness Protection Agency (WPA)

The Witness Protection Agency (WPA) is a corporate entity established by the Witness
Protection Act, No. 16 of 2006. Its main objective is to create a framework and procedures for
offering special protection, on behalf of the State, to individuals possessing crucial information.
These individuals face potential risks or intimidation due to their cooperation with prosecution
and other law enforcement agencies, as outlined in Section 3B of the Witness Protection Act.

3. Liaison Persons.

Successful collaboration among the Office of the Director of Public Prosecutions (ODPP),
Independent Policing Oversight Authority (IPOA), and National Police Service (NPS) through
the Directorate of Criminal Investigations (DCI) and Internal Affairs Unit (IAU) is crucial for
effectively fulfilling their mandates, particularly in the investigation and prosecution of offenses
involving police officers and serious human rights violations. Unfortunately, challenges such as
overlapping mandates, misunderstanding of mandates, lack of cooperation, and mistrust between
these institutions have impeded their ability to conduct investigations efficiently, promptly, and
comprehensively. Consequently, victims of police violations face delays in accessing justice.

To the end of streamlining collaboration, each agency is required to appoint a Liaison person
whose mandate is to facilitating communication and coordination between the agencies in their
respective regions. They are required to arrange consultations, telephone conferences, or request
written advice as needed for specific cases. The regional contact person will report to the Joint
Implementation Committee and, ultimately, to the Heads of the involved agencies. The ODPP
liaison officer in each region will maintain contact with relevant investigative agencies, and in

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cases requiring involvement of any agency, the liaison officer will promptly initiate contact
through identified points. The agency liaison officers at the regional level will function as a
Regional Joint Implementation Committee, reporting to the National Joint Implementation
Committee. This structure aims to enhance collaboration, streamline communication, and
improve the overall effectiveness of these agencies in handling cases.

Where a complaint is lodged with one party that falls within the mandate of the other party
(mandated party), the party where the complaint is lodged will liaise with the other party and the
complainant with a view to determining the most appropriate way to manage the complaint.
Where issues raised in the complaint fall under the responsibilities of both parties the parties will
liaise and decide whether the issues raised require: Management by IPOA with input from ODPP,
Management by ODPP with input from IPOA, Management of IAU with input from IPOA,
Separation of the complaint so that ODPP and IPOA manage those parts within their own
responsibilities; or a combination of the above. 2 The agencies are required to share the
trends/patterns emanating from complaints received by each party.3

Process of Investigation and Prosecution.

If the National Police Service (NPS) initiates investigations within the Independent Policing
Oversight Authority's (IPOA) mandate, it must promptly notify IPOA as per Section 25(2) of the
IPOA Act.

Upon receiving notification, IPOA has the authority to take over the investigations if deemed
appropriate, regardless of the initial reporting source.

If IPOA decides to take control of the investigations, it must formally inform the relevant agency
in writing about its decision to assume responsibility.

The investigative agency, upon receipt of IPOA's decision, is obligated to hand over the complete
investigation file, along with all relevant evidence and exhibits, within the stipulated timeframe
mentioned in the advice.
2
Standard Operating Procedures on Investigation and Prosecution of Serious Human Rights Violations Committed
by Police Officers (26)
3
Standard Operating Procedures on Investigation and Prosecution of Serious Human Rights Violations Committed
by Police Officers (30)

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IPOA is responsible for conducting a speedy investigation, ensuring comprehensive coverage of
all relevant areas and preserving evidence.

If the responsible NPS officer fails to comply with Section 25 of the IPOA Act, appropriate
action will be taken. This may include actions based on NPS Standing Orders, IPOA Act Section
25(3), ODPP Act Section 27(2) and (3), or the Penal Code.

The Office of the Director of Public Prosecutions (ODPP) will inform the Independent Policing
Oversight Authority (IPOA) of any matters recommended for prosecution by the National Police
Service (NPS) or any other agency that fall within IPOA's mandate. This notification occurs
before the commencement of prosecution.

If matters within IPOA's investigative mandate are registered in court by the NPS without
IPOA's notice, IPOA retains the right to take action.

IPOA has the authority to request the ODPP to either stay or withdraw such cases in court,
allowing IPOA to complete its investigations before legal proceedings proceed.

Upon securing a stay of matters in court, IPOA commits to expediting the investigations of the
cases in question. The aim is to complete the investigations within a reasonable timeframe.

IPOA is designated as the primary agency responsible for conducting investigations into crimes
committed by police officers that constitute serious violations of human rights, including cases
involving obstruction of justice related to police crimes.

For complex cases of serious human rights violations by the police, IPOA has the option to seek
assistance from the Office of the Director of Public Prosecutions (ODPP) under Section 50(3) of
the ODPP Act.

If assistance is requested from ODPP, the conduct of investigations will adhere to the provisions
outlined in Part III of the ODPP Act, the IPOA Act, and any mutually agreed-upon procedures
between the two parties.

In appropriate cases, IPOA has the authority to formally request the National Police Service
(NPS) in writing to arrest a suspect pending the completion of its investigations.

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Upon receiving the request and making an arrest, the Investigating Officer will establish
communication with the ODPP to facilitate custodial orders and ensure legal compliance during
the arrest and detention process.

The Office of the Director of Public Prosecutions (ODPP) makes the decision to charge.It bases
its decision-making process on legal frameworks such as the Constitution of Kenya (Article
157), Fair Administrative Action Act No. 4 of 2015, the ODPP Act, and the National
Prosecution Policy, along with the Decision to Charge Guidelines.

Each case under consideration by the ODPP must undergo prosecutorial tests outlined in the
National Prosecution Policy and Decision to Charge Guidelines to ensure it meets the necessary
criteria for prosecution.

Prosecutors are responsible for reviewing, advising, and prosecuting cases, ensuring that the law
is correctly applied according to the principles outlined in the National Prosecution Policy. A
prosecution can only proceed when a case has successfully passed the required prosecutorial
tests.

The ODPP is tasked with reviewing evidence and presenting charges in court within a reasonable
timeframe, following the guidelines set out in the ODPP Prosecution Guidelines.

The exercise of independent prosecutorial discretion and the manner in which duties are carried
out are governed by the ODPP Prosecution Guidelines, providing a framework for decision-
making.

Prosecutors are required to consult with and inform investigators of decisions made during the
process, including the registration of charge sheets. This collaboration aims to address any
administrative barriers and facilitate a smooth progression of legal proceedings.

Prosecutorial Tests

The decision to prosecute, as mandated by the Constitution, involves considering public interest,
the administration of justice, and preventing legal process abuse. This globally accepted practice,
rooted in common law, follows a Two-Stage Test.

The Evidential Test. This demands an objective evaluation of evidence's admissibility and
sufficiency, considering factors like identity clarity, rebuttal strength, admissibility under rules,

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and evidence reliability. If evidence is insufficient, a Threshold Test may apply based on
reasonable belief in future evidence availability, case seriousness, and the need for immediate
charging decisions.

The Public Interest Test. This assumes prosecution when evidence reveals criminal law
contravention, with factors weighed individually for each case. The assessment involves
determining the significance of each factor, acknowledging that the absence of a factor doesn't
imply a specific prosecution stance. Public interest considerations include the seriousness of the
offense, the offender's criminal record, and the unique circumstances of each case.

CASE LAWS.

Nahashon Mutua v Republic [2020] eKLR

Facts

Martin Koome Manyara was arrested by officers from Ruaraka Police Station, initially for being
drunk and creating a disturbance at his house. The next morning, Martin was found seriously
injured and later succumbed to his injuries at Kenyatta National Hospital. Chief Inspector
Nahashon Mutua, the Officer Commanding Station at Ruaraka Police Station, was initially
charged with Martin's murder after investigations revealed signs of assault.

However, the charge against Mutua was withdrawn after complaints were made to the
Independent Policing Oversight Authority (IPOA). Subsequent investigations by IPOA
implicated Mutua in the assault on Martin. Witnesses testified that Mutua beat Martin with a
metal pipe, causing severe injuries. Mutua allegedly attempted to cover up the incident by falsely
accusing another suspect, Kevin Odhiambo, of the assault. Mutua was convicted of murder and
sentenced to death based on evidence that demonstrated he had assaulted Martin, leading to fatal
injuries. Mutua was convicted of murder and sentenced to death based on evidence that
demonstrated he had assaulted Martin, leading to fatal injuries. The trial judge found Mutua's
conduct and the lack of adherence to police procedures to be significant factors in the conviction.
The injuries suffered by Martin indicated malice aforethought, leading to Mutua's conviction for
murder. Mutua appealed. In his appeal, Chief Inspector Nahashon Mutua, dissatisfied with the
High Court judgment, presented 22 grounds challenging his conviction for the murder of Martin
Koome Manyara

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Issues raised during the appeal

1. That the prosecution's case lacked proper proof and suffered from contradictions among
witnesses. The defense questioned the credibility of the three star witnesses, suggesting a
potential motive for them to lie against Mutua.

2.That the investigations conducted by the Independent Policing Oversight Authority (IPOA)The
advocate also raised concerns about interference in the case, asserting that IPOA directed the
Office of the Director of Public Prosecutions (DPP) on who to charge, violating Mutua's rights.

3.That the defense emphasized inconsistencies in the evidence related to the murder weapon and
disputed the rejection of defense evidence by the trial judge.

4.That Mutua's constitutional and human rights were violated due to ineffective criminal
investigations.

5.That there was violation of Mutua’s constitutional and human rights as there were no effective
criminal investigations carried out before Mutua was brought to court. Dr. Khaminwa argued that
a decision having been made to prosecute Kevin Odhiambo with the murder of Martin, under
Section 26 of the Independent Policing Oversight Authority Act (IPOA Act), IPOA had no
jurisdiction to investigate the matter; that IPOA exercised authority without the sanction of the
DPP; and that the prosecution of Mutua on the statements taken by IPOA rendered his trial
irregular.

6.That it was wrong for the learned Judge to visit the scene of crime and turn the court into a
witness institution.

7. That Harriet and Rama who were sworn as Muslims were actually Christians and their
evidence was therefore irregular; and that the pathologist’s description of the injuries on the body
of the deceased as being consistent with mob justice was not taken into account.

Rules.

1. Witness Protection Act (Chapter 79, Laws of Kenya):

Sections 3, 4(3), 6(a), 7(1)(a)(i-v), 26.

2. Independent Policing Oversight Authority (IPOA) Act (Act No. 35 of 2011):

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Section 6(a)(i-x), 7(1)(a-d).

3. Penal Code (Chapter 63, Laws of Kenya):

Section 203 (Offence of Murder).

Section 206(b) (Malice Aforethought)

Analysis

The charge against Mutua was murder under section 203 of the Penal Code, necessitating proof
of specific elements: Martin's death, the causation of death by an unlawful act or omission by
Mutua, and the presence of malice aforethought. It was undisputed that Martin died, but the
crucial question revolved around whether Mutua's actions led to Martin's death unlawfully and
with malice aforethought.

The events surrounding Martin's arrest and subsequent demise were outlined, with particular
attention given to the conflicting narratives regarding the circumstances of Martin's fatal injuries.
Disputes arose over the location and manner in which Martin sustained the injuries, with
prosecution witnesses asserting Mutua's direct assault, while the defense contended that Martin
was attacked by another inmate in the police cells.

The court scrutinized the testimonies of witnesses, distinguishing between prosecution and
defense accounts. It noted the contradictory and evasive nature of police officers' testimonies,
hinting at a potential cover-up within the police force, a phenomenon known as the "blue code of
silence."

Protected witnesses, Ali, Rama, and Tom, whose identities were shielded due to potential threats,
provided consistent and credible testimony supporting the prosecution's version. The court
considered the discrepancies in descriptions of the weapon and Mutua's attire inconsequential to
the overall credibility of the witnesses.

The court addressed Mutua's claims of a violation of his right to a fair trial, clarifying that
protective measures for witnesses were in accordance with the Witness Protection Act. It stressed
that Mutua's counsel effectively cross-examined witnesses during the trial, and any alleged
violation of fair trial rights was considered an afterthought.

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In evaluating IPOA's role, the court affirmed the authority's powers to investigate police
misconduct and observed that IPOA's actions were consistent with its statutory mandate. The
court underscored the pathologist's testimony, which corroborated Mutua's guilt by establishing
the severity of Martin's injuries and the implication of unlawful conduct.

Conclusion.

Ultimately, the court rejected Mutua's appeal against conviction and sentence. It upheld the trial
court's decision, expressing confidence in the integrity of the trial proceedings and the resulting
judgment.

Republic v Fredrick Ole Leliman & 4 others [2020] eKLR

Facts.

In the case of Republic v Fredric Leliman and four others (Criminal Case No. 57 of 2016, High
Court of Kenya), Fredrick Leliman reportedly held animosity towards the Lawyer Willie
Kimani(Acting with, who had filed a complaint with the Independent Police Oversight Agency
(IPOA) against him, acting on behalf of his client who was also murdered. Seeking retribution,
he orchestrated multiple arrests of the Willie Kimani, playing a crucial role as a witness in
ongoing legal proceedings against him.

On June 23, 2016, as Willie Kimani prepared for a traffic case hearing. Allegedly, the five
accused individuals Fredrick Leliman, Stephen Cheburet, Sylvia Wanjiku, Leonard Mwangi and
civilian Peter Ngugi, conspired to arrest Kimani, resulting in the apprehension of the Josphat
Mwenda(His Client) and Joseph Muiruri(Taxi Driver) as well. The detained trio was then taken
to Syokimau Administration Police Post, where the Fredrick Leliman was in charge, and the
Silvia Wanjiku Wanjohi was on duty as the Cell Sentry and Report Office personnel. The
prosecution presented a note during the trial, purportedly from the post, as evidence suggesting
the detention of the three deceased on June 23, 2016.

The 5th accused Peter Ngugi Kamau, recorded a confession on August 9, 2016. This statement
details a conspiracy, initiated by the Leliman seeking assistance due to an incident where he had
allegedly shot and injured Josphat Mwenda. The confession outlines the planning and execution

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of the murder plot, encompassing various stages, including court attendance, kidnapping,
detention, disposal of the vehicle, discarding of cell phones, and the drive to the murder site.

Following their alleged detention at the police post, the three deceased were purportedly taken to
an open field in Soweto, Mlolongo, where they met their untimely demise. Subsequently, their
bodies were transported to Kilimambogo, Machakos County, and thrown over a bridge into River
Athi for disposal. The discovery of human legs in River Athi on June 29, 2016, led to the
retrieval of the bodies of Kimani and Joseph Muiruri on June 30, 2016, and the Josphat Mwenda
on July 1, 2016. Post-mortem examinations revealed that the deceased had succumbed to injuries
inflicted by blunt force trauma and strangulation.

The court highlighted aggravating circumstances and individual roles of the accused. For the first
accused, aggravating factors included interference with the course of justice, group involvement
in the murder, and the use of crude weapons. The judge emphasized the abuse of office by a
police officer and the violation of duties entrusted to him.

The second accused was noted to lack personal vendettas but played a crucial role in the
abduction and detention of the deceased.

The third accused, her role was primarily defined by her responsibility to keep the deceased
persons at the police post, where she served as the reporting officer. The judge took into account
her status as the youngest and most junior member of the group, acknowledging the stringent
pecking order and discipline within the police force.Despite her junior position, the third accused
faced criticism for actively participating in the crime and subsequently denying her involvement.
The judge highlighted that discipline and order within the police force cannot justify aiding,
abetting, or enabling crime, followed by concealing and denying any knowledge or involvement.
The third accused's lack of candor during the investigation or trial was deemed a missed
opportunity for positive extenuating circumstances in the mitigation process.

In contrast, the third accused, during a probation officer interview, admitted to negligence in her
place of work on the material day. While she denied playing any significant role during the trial,
her candor during the probation officer interview was considered facilitative. The judge
acknowledged her admission of negligence but underscored that it did not constitute a peripheral
role, as suggested by the defense.

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The sentencing considered various factors, including age, being a first offender, guilty pleas,
character, and the possibility of reform, as per the Sentencing Guidelines adopted by the National
Council on the Administration of Justice (NCAJ).

In conclusion, the judgment found the first, second, third, and fifth accused guilty of the three
counts of murder under Section 203 of the Penal Code. The judge rejected their defenses,
emphasizing the premeditated nature of the murders, high-level planning, and the use of
technology. The sentencing followed the guidelines and took into account the severity of the
crime, leading to the conviction of the accused individuals. The judgment highlighted the abuse
of power within law enforcement, contributing to a landmark case that drew public attention in
Kenya. The legal process and analysis demonstrated the court's commitment to addressing
heinous crimes and ensuring justice for the victims.The court sentenced Fredrick Leliman to
death whilePolice officers Stephen Cheburet and Sylvia Wanjiku were sentenced to 30 and 24
years in jail respectively while police informer Peter Ngugi was jailed for 20 years.

Note: Omission

The third accused’s biggest oversight in the conspiracy was her error of omission as she was the
officer at the reporting desk that day but she did not record the camp’s occurrence book about the
detention of the three suspects which made her culpable in the murder. While the court took into
consideration that she was following instructions from her direct boss, it also established that she
had a responsibility to record the detention and should have defied Leliman’s order.

Republic v Veronicah Gitahi & another [2016] eKLR(Kwekwe Mwandaza Case)

Facts

In this case, IP Veronica Gitahi and PC Issa are facing charges of murder under sections 203 and
204 of the Penal Code. On the night of August 22, 2014, in Kinango, Kwale County a police
team, led by the accused, embarked on an operation with the purported mission of flushing out
known murder suspects reportedly hiding in the village. Kwekwe Mwandaza and her two
siblings were sleeping in this house on that ill-fated night.

The accused, armed with firearms (IP Veronica Gitahi with a Jericho pistol and PC Issa with an
AK 47 rifle), were part of a team of thirteen officers from CID Kinango and the Administration

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Police. The first and second accused formed one subgroup of the team. Upon reaching the house
where Kwekwe was sleeping, they allegedly identified themselves as police officers in Swahili,
instructing the occupants to open the door and turn on the lights. The defense claims that after
receiving no response, they forcefully entered the house, and it was during this entry that
Kwekwe was shot dead.

IP Veronica Gitahi, in her sworn statement, recounted the events, stating that they knocked on the
door, identified themselves as police officers, and, upon entering, encountered a threatening
situation. She claimed to have fired two shots in the air to scare the suspect into submission. PC
Issa, also armed with an AK 47 rifle, corroborated this account, alleging that he heard a threat
and witnessed his colleague stumble before firing his weapon.

The defense's narrative centers on the belief that G Z, a purported dangerous criminal, was
present in the house and posed a threat, justifying the use of firearms. However, G Z provided an
alibi supported by Safaricom call data, indicating he was miles away at Kikambala Kongoni at
the time of the incident.

The defense also emphasized Kwekwe's physical stature, alleging that she attacked the officers
with a panga, resulting in damage to the rifle of the second accused. However, the postmortem
report, presented Kwekwe as a 14-year-old with slight physique, contradicting the defense's
characterization.

Issues Arising:

1. Whether the accused individuals were justified in using firearms and whether their actions
were driven by an intention to cause death.

2. Whether the defense's claim of self-defense against G Z is credible and withstands scrutiny.

3. Whether the use of firearms against a 14-year-old is appropriate, taking into account the
provisions of the National Police Act, specifically addressing the use of force, particularly
against minors.

4. Whether the absence of proper surveillance, including the failure to identify the occupants of
the house and ascertain the presence of children, constitutes a crucial factor in assessing the
lawfulness of the accused's actions.

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Rules

1. Sections 203 and 204 of the Penal Code: These sections form the legal foundation for the
murder charges brought against the accused.

2. National Police Act: Attention is given to conditions governing the use of firearms, including
self-defense and protection of life, with a focus on Section 6, sixth schedule, and Rule 3
emphasizing avoidance of firearm use against children.

Analysis

The primary issue at hand involves determining the legitimacy of employing firearms and
establishing whether the accused harbored the intention to cause death. The National Police Act
provides conditions for the use of firearms, emphasizing self-defense and the protection of life.
Rule 3 of the sixth schedule highlights the obligation to avoid using firearms, especially against
children.

The defense's self-defense claim hinges on the perceived threat posed by G Z. This claim must
be scrutinized in light of the circumstances surrounding the incident, including the absence of
proper surveillance and the disproven presence of G Z at the scene.

The appropriateness of using firearms against a 14-year-old, Kwekwe, is a critical consideration.

The National Police Act emphasizes the need to avoid the use of firearms, especially against
children. The defense's assertion that K posed a threat and the subsequent use of deadly force
must be evaluated against these legal standards.

The lack of proper surveillance raises questions about the lawfulness of the accused's actions.
Rule 3 of the National Police Act's sixth schedule mandates efforts to avoid using firearms
against children. The failure to identify the occupants of the house, coupled with the omission to
ascertain the presence of children, constitutes a significant legal concern.

Conclusion:

The court established that itis evident that the accused's use of firearms lacks the necessary
justification and compliance with legal standards. The defense's claim of self-defense is
undermined by the absence of proper surveillance, and the disproven presence of G Z raises
doubts about the credibility of the threat.

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The use of firearms against a minor, Kwekwe, is deemed inappropriate under the National Police
Act's provisions, especially Rule 3, which emphasizes the avoidance of using firearms against
children. The failure to conduct proper surveillance further demonstrates negligence on the part
of the accused.

Therefore, based on the legal analysis, the accused individuals cannot be deemed justified in
their actions. The use of firearms against Kwekwe resulted in tragic consequences and, as such,
the accused were found guilty of manslaughter under section 202 of the Penal Code.

Other Cases

Republic v Chibungu Sanga [2021] eKLR

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