Republic v Waithaka (Criminal Case 746 of 2014) [2017] KEMC 132 (KLR) (7 March 2017) (Judgment) Neutral citation: [2017] KEMC 132 (KLR) REPUBLIC OF KENYA IN THE NYAHURURU LAW COURTS CRIMINAL CASE 746 OF 2014 PA NDEGE, PM MARCH 7, 2017 BETWEEN REPUBLIC ............................................................................................ PROSECUTOR AND ELIUD KANGERA WAITHAKA ......................................................... DEFENDANT JUDGMENT 1. The defendant herein, Eliud Kangera Waithaka, a businessperson from Ol Kalou town was involved in a drinking fracas on 25.02.2014 while at U-Turban Bar belonging to PW1, John Macharia Gachubi. The fracas involved him and other witnesses including PW2, Jackson Mwangi Wambugu, and PW3, Wilson Chege Munyi, who were drinking with him at the pub. They were being served by PW4, Ruth Nyokabi Kariuki, and PW5, Pauline Nyambura. It is the defendant's belief that he was robbed of Kshs. 100,000/= in the course of the fracas which was money meant to purchase wheat at Meru. That the robbery attack happened when PW2, Jackson Mwangi Wambugu, had threatened to slaughter him using a sickle at the neck thereby causing some injuries to them. 2. He went and made the report to PW6, No. 7XXXX180 IP Hellen Miloe, of Ol Kalou Police Station, who immediately went and arrested PW2, Jackson Mwangi Wambugu. The defendant's lorry was also detained at the police station pending investigations. The investigation was mainly to find out whether the defendant had the money which he claims was stolen from him. The investigations were however not concluded. The defendant, instead found himself being charged with the ofience of Giving False Information to a Person Employed in the Public Service contrary to section 129(a) of the Penal Code. 3. On 03.04.2014, he denied before me that on 31.03.2014, at Ol Kalou Police Station report ofice in Nyandarua Central District within Nyandarua County, he informed No. 7XXXX180 SGT Hellen Melwai, a person employed in public service as a police oficer that he had been attacked, injured and robbed of his cash, Kshs. 100,000/= by persons known to him, information he knew or believed to be false, intending thereby to cause the said sgt Hellen Melwai to arrest Jackson Mwangi Wambogo which https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/132/eng@2017-03-07 1
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she ought not to have done if the true state of facts respecting which such information was given had been known to him. 4. From the evidence adduced herein, I do believe that the defendant herein did not deliberately deceive the police. The defendant gave his evidence on oath where he reiterated that he was attacked and robbed of Kshs. 100,000/= by PW2 and his group during the fracas. The police therefore had the duty to investigate the complaints and find out if the same are true. It was not the duty of the complainant, i.e. the defendant herein, to arrest PW2. The police ought to have acted professionally by conducting thorough investigations before arresting PW2. If I were to convict the defendant herein, then I shall be abetting the police incompetence. Members of the public shall fear to make any such complaints to the police where they hold a belief that someone had committed a wrong to them. I find that the charges against the defendant herein were misconceived ab initio. I do therefore find that the prosecution has failed to prove to the required standard of beyond reasonable doubt that the defendant herein deliberately deceived the police. 5. I consequently do hereby enter a finding of not guilty and do hereby acquit the defendant herein of the ofience of Giving False Information to a Person Employed in the Public Service as charged herein. His Kshs. 10,000/= cash bail be released to the depositor. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN CPURT THIS O7TH DAY OF MARCH, 2017 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Frank Prosecution Counsel: Chelangat Defence Counsel: N/A Defendant: Present Victim: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/132/eng@2017-03-07 2
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