Jailed Priest faces
tough appeal options
JAILED
Fr John Makewa has embarked on a do or die battle of his life to
thwart the execution of a jail term he faces for his endeavor to
murder a fellow priest Fr Fidellis Nzuki.
In
a memorandum of appeal filed in the High Court in Machakos that The
Anchor has seen, Makewa states 21 grounds in a petition that may see
his term either reduced, upheld, quashed or escalated.
His
appeal was admitted to the High Court and is likely to be heard in
December this year. Fr Makewa was jailed in June after Tawa Senior
Principal Magistrate Waititu Gichimu found him guilty of attempting
to murder Fr Nzuki at the Wote residence of the Priest in charge of
the Parish, some two years ago.
Fr
Makewa is out on bond pending appeal. The priest faces four possible
outcomes from his appeal. First, the judges may find fault in the
process that led to his conviction and set him free on a
technicality. Second, the judge may find that the trial magistrate
may have been harsh to Fr Makewa by handing him a seven year jail
term given the circumstances surrounding the case and reduce the
term.
Third,
the judge may simply uphold the sentence and send Makewa to jail on
the same terms. Fourth, and very crucial, the High Court may find
that the trial magistrate may have been too soft on Fr Makewa by
handing him a seven year jail term, while he ought to have been
jailed for life, given the circumstances in the case.
Legal
sources told the Anchor that the State is yet to respond to the
Memorandum of Appeal that Fr Makewa filed.
Those
privy to the case indicate that the State is contemplating supporting
the appeal and issue a notice to Makewa of their intention to seek an
enhancement of the sentence.
Such
an eventuality, the sources say may present Fr Makewa with afresh
headache of choosing to pursue the appeal and live with the
possibility of an enhanced sentence of surrender himself to the Kenya
Prisons Service to begin his modest 7-year term.
Makewa
(Applicant) appeals against the judgment and sentence of Mr Gichimu
on the following grounds: That the Learned Trial Magistrate failed to
appreciate the elements of the charge facing the Applicant and
therefore reached a bad and unreasoned decision. He claims Gichimu
misdirected himself on several material facts which led him to arrive
at the wrong decision.
“The
Learned Magistrate’s decision was wholly based on speculation and
in total disregard of the facts that were presented to him and erred
in his valuation of the probative value of the evidence before him by
giving undue weight to some facts which were adequately traversed by
Learned counsel for the Applicant while ignoring other important and
potent facts which were not traversed at all and which ought to have
exonerated the Applicant from the said charge”, he says.
Fr
Makewa alleges that the judgment was contrary to the weight of the
evidence before the Learned Magistrate and that the learned Trial
Magistrate erred in law by lending credence and convicting the
accused person solely on the evidence of a single witness.
During
the sentence, Mr Gichimu said he had cautioned himself against the
danger of relying on a single witness to convict Fr Makewa but added
that even then, testimony of Fr Nzuki was collaborated by other
witnesses and was on its own water tight to convict to accused.
Notwithstanding,
Fr Makewa sates “The Magistrate erred in Law by falling to caution
himself on the danger of relying on the evidence of a single witness
by finding that PW1(Fr Nzuki) was a credible witness when it was
evident from the evidence before the court that PW 1 had a sudden
change in his attitude and story long after the night of the
incident.”
He
says the Magistrate erred both in law an in fact by making the
following findings:
a. THAT
the loud noises which were confirmed to have been heard by four
of the prosecution witnesses outside were in fact caused rain.
b. THAT
there were no robbers in the compound.
c. THAT
the accused person “had the
guts
to tell the complainant to die” despite the said testimony not
being corroborated.
d. THAT
the accused person concocted a plan to kill the complainant despite
not having any evidence in support of this.
e. THAT
the accused person shot the complainant twice.
f. THAT
NO members of the public went to the scene before the police
arrived.
g. THAT
the officers thoroughly searched the compound.
h. THAT
the accused person let the complainant bleeding and unattended
to on the floor for twenty minutes despite evidence to the
contrary showing that the accused was active in providing aid to
the Complainant.
i. THAT
motive in the instant case was immaterial.
j. Making
an unsupported and
uncorroborated
finding that all the prosecution witnesses had no reason to lie
against the accused person since they were his friends.
k. THAT
there were no holes in the walls
despite
the prosecution’s own evidence pointing to the contrary.
l. THAT
there were no footsteps in the compound despite there having been
rain and a multitude of person’s having been on the compound.
m. THAT
if the windows were hit by bullets there would be clean holes and
not necessarily shuttering.
n. Totally
ignoring the evidence of the Sisters.
o. Failing
to give notice to the fact that there were.
Makewa
claims Mr Gichimu gave too much credence to the evidence of Gerald
Mbithi Munyao who was found to be an unreliable witness and less than
candid when questioned by the original trial court in Makueni.
He
alleged that the magistrate contradicted himself with regard to the
evidence of PW 6, by interchangeably placing him at the scene when
his evidence was pro the prosecution and removing him from the scene
when his evidence was anti the prosecution.
He
took issue with Mr Gichimu alleging that despite the existence of
many facets of the case he reduced the issues for determination to
only two issues and ignored the rest of the facts.
He
accused him of failing to consider that there were windows shattered
in parts of the building that could not possibly have been reached or
hit by the accused’s bullets and that he failed to give credence to
the fact that there was a stone found in the house which was hurled
in from outside.
The
jailed priest charged further that Gichimu failed to give any
consideration to the theory proffered by the Accused person as to the
possibility of the complainant having been a victim of friendly fire
or enemy fire.
He
said “ the Learned Magistrate erred in Law by finding that the two
elements necessary for the prosecution to prove its case to wit men’s
rea and actus reus existed
in the case despite evidence provided by the prosecutions own
witnesses to the contrary. The judgment was based on speculation and
imagination”
He
accused him of being partial by lending more credence to the
Prosecution’s evidence and not giving any weight to the evidence of
the Accused person.”After making a finding that the accused was in
fact a good marksman the Learned Magistrate erred in fact by going on
to find that he could have failed to find his target despite only
being two meters from the complainant.”
Fr
Makewa says the Magistrate erred in finding that the Prosecution
proved its case beyond reasonable doubt whereas there existed many
grey areas and plenty of doubt in the prosecution’s case, adding
that the Learned Magistrate failed in
toto
to consider the accused person’s defense and the submissions filed
on his behalf.
He
concluded him memorandum by accusing the Magistrate of failing to
consider the evidence of Boniface Mutua which went a long way in
supporting the Accused person.” In the circumstances the conviction
and sentence is harsh, vindictive and excessive given the nature of
the offence and charge and given the fact that the accused was a
first offender”.
