How police nailed Makewa
 |
| Prosecutor Jonathan Kyumbu |
By Martin Masai
POLICE earned incredible accolades in Tawa Court as the trial magistrate sentenced fabled suspend catholic priest John Makewa to seven years in Jail. Senior Resident Magistrate Waititu Gichimu said he was satisfied that police officers investigating the attempted murder charge did a superb job by piecing together evidence to prove that it is Fr Makewa who shot Fr Fidelis Nzuki on the night of March 21 2010 with the intention of killing him.
Gichimu summarized his task as trial magistrate as requiring him to determine two questions: Was it Fr Makewa who shot the complainant?; Was the accused intent on killing the complainant?
After analyzing evidence available, Mr Gichimu concluded in the affirmative and told Fr Nzuki that he was indeed lucky to be alive.
The Anchor, determined as ever to cover this matter extensively now brings you a summary of submissions made by Police Prosecutor Jonathan Kyumbu to secure a conviction against the assailant priest.
Herewith, a verbatim account. "Your Honour, further to the prosecutions
submission 23rd April, 2012 and filed in court on 25th April, 2012
the prosecution wishes to further submit as follows:The prosecution has proved the charge
of attempted murder against the accused person beyond any reasonable doubt, and
as by law required. We do wish to
reiterate the contents of our submissions filed earlier and now wish to proceed
further as follows. I start by addressing the scene of the crime.
SCENE OF CRIME
Your honour we invite you to look
keenly to the evidence of PW8, PW11
and PW14, both in their chief
examinations and during cross-examination.
These witnesses were all Police Officers and they have confirmed that
the window panes were broken by something else other than bullets. In cross examination PW8 insisted that if
they were bullets, then they would not have come from outside. Obviously, this suggest that they were from
inside. PW11 spoke of a sand stone which
found in the room of the accused.
There
is your honour a high possibility that the accused used the sand stone to brake
the window pane in an attempt to justify his theory that it was the thugs who
shot at it. We invite your honour to
analyse this scenario critically and find that the accused is not a trustworthy
man and dismiss his theory. Pw11 further
stated that it is the lowest middle window pane which had been broken. The accused broke that which he could
reach. On further cross examination PW11
informed that the broken glasses fell outside the room/house suggesting that
the bullets were short from inside. (See
line 9 of page 32 of the proceeding.
We further invite your honour to look
at lines 10, 11 and 12 of page 32 of the preceding and make a finding the
pellet found in the body in the aforesaid line were from the accused person’s
shot gun.
The accused person confirmed in his
defence in Chief that the complainant was behind him at the time. One wonders how the thugs bullets as put by
the accused by-passed him and caught the complainant on his hand and both
thighs. Your honour this is not
practical for all purposes and reason.
Without going deeper on this point we invite you to find the accused`s explanation incredible and dismiss it
forthwith.
The complainant was shot on his hands
and thighs. From the setting of the
accused person`s house, the complainant was standing along the veranda and was
completely covered below the stomach. It
was therefore not possible for him to get shot at the thighs by a bullet fired from
outside the house. See the photos
produced as exhibits no. 4pg 18. See
testimony from PW 8 Page 25 in cross examination. He insists that given the
setting of the accused’s house, there was no way the bullets could have been
shot from outside to hit the complainant below the stomach. The complainant therefore was shot by
somebody from inside the house and this is none else other than the accused person
THE
ROBBERS THEORY
From the entire evidence on record,
there were no robbers at the scene as alleged by the accused person. None of
the prosecution witnesses talked of thugs, but only commotion. The commotion which the witnesses talked
about was only that of the accused, the complainant, and PW6 who were already
up and in action. We submit that at no
time did the accused person see any robbers.
He was just shooting at nothing and later shot the complainant. In his statement in defence, he said he
checked and did not see anybody. Even
with this, he shot twice…. What was he
shooting at if he saw nothing?
It is worth noting that the alleged
thugs posed no threat at all for they gave the accused humble time to keep
loading, re-loading, pick phone calls, mobilize support from among others, the
visiting complainant and Shooting at people he could not see, yet at the end
the shot at none of them other than the complainant he alleges to have been protecting.
We further submit that the accused person
did not at all call the police or anyone else for rescue when the Parish was
allegedly under attack. This is contrary
to the ordinary reaction by people when attacked by thieves.
From the evidence on record the
accused person did not portray himself an honest person and acted maliciously,
in that-
i.
He mentioned many thugs when police visited the scene
immediately but in his sworn statement of defence he talked about three
attackers.
ii.
He reported to the police ( See PW 8,PAGE 24, PW 14 PAGE 36) that he used his Ceska Pistol but
there were no cartridges from the same, this further discredits his character, if
not evidence. The evidence by the police
shows that the pistol was intact, to suggest it was loaded fully and no bullet
from it had been spent.
This can be collaborated by testimony by the
complainant that it is him who held the pistol he had been given by the
accused, hence why no bullet was expended from it. - See evidence of PW1, Page 5 and PW11 PAGE 29 of the proceedings. The
accused himself admitted having handed two bullets to the complainant.
iii.
Further, the accused
testified waking up the complainant and a visitor to help him fight off the
thugs. Interestingly, he did not wake up or call to his help, his principal
assistants( PW4 and PW5) who were well conversant with the house, its
surrounding and were best placed to call for help to repulse the alleged attackers
as opposed to the visitors. It shows that the accused selected his target and
isolated him to execute his mission. That he gave him bullets as, the accused
confirmed in his sworn evidence and handed him a gun( see PW1 evidence, Page 5 of the proceedings) placed the
complainant in unmistakable position for his
attack.
iv.
The accused person wilfully and intentionally interfered with
the scene by collecting the spent cartridges from his short gun and only handed them to the police on 6th
April, 2012 sixteen 16 days after the
incident – see evidence of PW11 PAGE 30 lines 14, 15, 16,17 and 18. Your honour, from the explanation in no. iii
above, shows that the accused had ill motives, given that he hid the cartridges
and only handed them to the police after being coerced.
This act can only mean that the accused was
desirous to conceal some evidence and defeat the course of justice - see PW 8, PW11 and PW14. It is also clear from the evidence by the
investigating officer and the scene of crime officers that the accused
initially did not disclose that to them
that he possessed a Ceska pistol but only disclosed and handed it over to the officers
after the complainant reported to them -
officers - when they visited him in
hospital to take his statement. This
clearly portrays the accused a dishonest person and unbelievable in these
circumstances.
Your honour we wish to call your
attention to the disparity of time the alleged thugs attacked the Parish as
reported by the accused to the Investigating officer and other police officers who visited the scene
of the crime and as reported by the
accused person in his sworn evidence: see pw8 and pw11.
Finally your honour we wish to submit
on the question of the intent by the accused to murder the complainant. First of all the act of shooting the
complainant by the accused was not an accident.
This is because, the complainant suffered multiple gunshot wounds [see
P3] and the doctor’s report.
The complainant suffered gun shots on
his left hand, and both thighs. To shoot
somebody at the hand and both thighs was not done just once. The accused must have therefore shot from his
short gun twice, thrice or even severally.
Is shooting somebody thrice really accidental?
We submit that this was a well
mentally schemed operation by the accused to murder the complainant. Nobody else had a fire arm at the time and
there was no exchange of fire at all.
The accused, your honour, admitted during cross-examination that he was the
only person who had a gun that material night.
So who shot the complainant? Evidence
by the Prosecution shows that the complainant was shot from fire from a gun
consistent with the one the accused used that day.
Point of penetration shows bullets
could not have come from outside the room where the accused and the victim
were. It follows therefore that the enemy lay/stood within the room.
Only the
accused was armed and fired repeatedly from inside that room that night. He
shot the complainant.
PW 11, Page 29 insists several times
in his evidence that there were no footprints where the accused indicated the
alleged thugs had been spotted and were allegedly shooting from.
No spent
cartridges were recovered from the same area either. See also testimony by PW8,
Page 24 and see collaboration that no spent cartridges were recovered from the
wide area the accused showed the police. Clearly, Your Honour, this evidence,
juxtaposed with the sworn defence
statement in that respect demonstrates that the accused is dishonest and
manifestly unbelievable.
In his sworn statement of defence,
the accused tried to demonstrate to court how good a friend he was to the
complainant, but we wish to submit that this does not exonerate him from his ill motives towards the complainant. Indeed,
friends kill friends. No one can tell what is in the heart of another, even the
devil but only God.
The case law of Alexander Kilei
Kasuki
-VS-
R CA no. 134 of 2006 – is wholly in
support of the persecutions case.
Prosecution evidence shows that once
the complainant was shot, he lay injured, bleeding and as he faced death, asked
for Final Rites as prescribed in the Catholic Faith, since he believed he would
die.
Testimonies, including that of the accused shows for a good 20 minutes,
the complainant lay there helpless.
A Priest
at the mission house volunteered to administer the Rites (See evidence of PW5/ PAGE 16) as the accused paced up and down. The
complainant needed urgent medical attention, but the accused drove off to call
the police.
Sisters and the priests present used Fr Mutuku’S (PW5) car to rush
him to Makueni District Hospital where the accused says he was Chairman.
Clearly, the accused wanted the complainant dead, using delaying tactics to
finish off what his mission was. So where was this fabled friendship that was
not fruitful at the hour of need?
The accused instead went on to celebrate holy
mass at Multipurpose Hall at Wote Town and never even accompanied the
complainant to the hospital.
It is my humble submission that the prosecution
has proved its case against the accused person beyond any reasonable doubt. We request your honour to proceed and find
the accused guilty of attempted murder and convict him accordingly."
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