BUNGOMA Court admits statement from a ‘street’ witness, frees Mitungi goons who attacked iKUWEiKUWE presser

Bungoma Court admits statement from a ‘street’ witness, frees Mitungi goons who attacked iKUWEiKUWE movement presser

In Summary;

• Kiwanja Ndege attack (video)
• 2 Audio’s from DCIO
• Governor implicated (Audio)
• Majembe seeks forgiveness (Audio)
• Complaint letter to DPP
• Response from DPP
• Court ruling (Video)
• #iKUWEiKUWE Corner
• Advert: Download Kitui 280 JOB advert

Upon reporting our assault at Bungoma Police on 11^th April 2020 a criminal investigation officer called Samuel Liu Maloki was assigned the case. While writing the statement at CID offices we were informed that our OB report (Samuel Munialo’s and mine) shared an OB number and therefore there was need to do new OB reports (quite weird indeed). My report had 2 separate entries (OB numbers) one for assault which proceeded to court and a robbery one that NEVER appeared anywhere after reporting… Knowing that this was a plan to water down our case, I decided to start investigating the Police and this is when I discovered recording any serious engagements is very VERY important.

The day had started with me reaching out to John Nalianya to assist me in coordinating jounalists for the presser which he did. We converged at former Railways Park where a supervisor informed me that they had been ordered not to allow us issue of press statement there. We obliged and moved to the Duke where the owner Reuben Wambwa unlike him owing to the publicity he previously enjoyed courtesy iKUWEiKUWE Updates… also declined allowing us to hold a meeting there. We then walked across to Kiwanja ndege

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The main purpose of our presser was to respond to the Press Statement issued by Governor Wycliffe Wafula Wangamati on 11^th April, 2020, regarding the Covid 19 Pandemic illegal and irregular Cash Transfer and Borrowing of 6,982,800/- plus Ks. 5,000,000/-

At Kiwanja Ndege, Nyukuri was first to address the press (about 8-10 journalists). Immediately I started issuing my statement, 6 goons struck on 3 bodabodas each carrying a mpini. This prompted everyone to scamper for safety apart from myself. One of the accused called Mambo as if pre-planned came straight for me as others targeted others. He swung the mpini severally at me with preciseness to my head prompting me to shield myself using my hands. I was injured and treated at Bungoma County Referral Hospital (BCRH) so did Nyukuri and Samuel

With all the journalist present, none recorded the 5 or so minute incident apart from the one TV Magharibi journalist who was recording while running for his dear life. The rest ran to safety and just stood and watched without even caring to record…

Kiwanja Ndege attack video:

Thanks to everyone who showed up in solidarity and media who covered the story

 FAST FORWARD:

15^th April 2020; Bungoma South DCI Joseph Nzioka called me informing me that 5 goons  had surrendered themselves to the Police after he called the Governor and demanded that he produces those who attacked us prompting a chain reaction of events that saw the goons present themselves. I went there and found a number of them having a chat with officer Mary Okombo as officer Samuel Maloki asked me to leave since I would interfere with the statement writing

AUDIO – DCIO on goons surrendering themselves:

AUDIO – DCIO confirms Governor’s involvement in getting the goons;

Surprisingly, Out of the 5 attackers (who made statements)… Only two were arraigned in court

The above handwritten statement was NOT interrogated in court,… it was full of lies since I never used a vehicle to Kiwanja ndege, Never visited the County Commissioner’s office but from the Railways park we headed straight to the Duke before Kiwanja Ndege… No one attacked him, on the contrary it’s him in company of others who attacked us.

All the attacker’s statements had varying contradictions… The court cared less about them

During the long wait and numerous appearances in Court, the accused presented a witness (picked from the street) in their defense who was surprisingly admitted by the courts without having written a statement with the police.

AUDIO – Majembe Machacha seeks forgiveness for the goons:

On 7^th June 2021 we wrote to the office of Director of Public Prosecutions displaying our frustrations and dissatisfaction with how the court handled our case. We received a response… (see below)

One of the weirdest things that happened in Court is Mambo brought in a witness picked from the street and couched to defend him. The guy was cross-examined by the prosecutor only to discover later that the witness had not recorded a statement with the police and/or made any prior arrangements with the court to appear.

Wednesday, 21 July 2021 The court regrettably ruled that there was no evidence to prove that they were indeed the ones who assaulted us. They were set FREE.

Watch Court ruling here; https://fb.watch/v/Wfm8o05Z/

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Here is an extract from our complaint letter to the DPP prior to the ruling:

TO:

• THE PRESIDING MAGISTRATE IN CR. No. 911/227/020
• THE CHIEF MAGISTRATES COURT AT BUNGOMA (COURT No.8)

THROUGH:

• THE PROSECUTOR IN CR. No. 911/227/020

• THE CHIEF MAGISTRATES COURT AT BUNGOMA (COURT No.8)

THROUGH:

• THE EXECUTIVE OFFICER OF THE REGISTRY

• CHIEF MAGISTRATES COURT AT BUNGOMA

Dear Sir/Madam,

RE: COMPLAINANTS QUEST FOR TRANSPARENT AND PROCEDURAL ADMINISTRATION OF JUSTICE AND FAIR HEARING IN CR 911/227/020:

The above matter refers:

We Edward Wamalwa Simiyu, Barasa Kundu Nyukuri & Samson Simiyu Munialo, Complainants herein in Criminal Case No. CR9111/227/020 hereby state as follows:

1. THAT we were the main conveners of the Press Conference held at Kiwanja Ndege on the 13^th April, 2020. The main purpose of our Meeting was to respond to the Press Statement issued by Governor Wycliffe Wafula Wangamati on 11^th April, 2020, regarding the Covid 19 Pandemic illegal and irregular Cash Transfer and Borrowing of 6,982,800/- plus Ks. 5,000,000/-

2. We wish to inform this Honourable Court was Barasa Kundu Nyukuri of Torch Africa Civil Society Organization and Edward Wamalwa Simiyu together with Samson Simiyu Munialo of the #iKUWEiKUWE Movement that had unearthed on the 28^th March, 2020;

3. THAT while we respect and appreciate the powers of the Prosecution stipulated in Article 157 of the Constitution of Kenya, 2020; we are deeply concerned about procedural impropriety and the manner in which the hearing process for our Case has been conducted by the prosecutor before the Honourable Court;

4. THAT the Prosecutor during the conduct of the hearing of our Case has not strictly adhered to the rule of law and due process as stipulated in Articles 27, 47, 48, 50 & 157 of the Constitution of Kenya, 2010 as read together with Section 7 of the Fair Administration Act, 2015;

5. THAT the Complainants herein have not been given a fair chance and opportunity to reply as well as seek clarifications from the Defendants herein thus Edwin Maina Masongo & Benard Nyongesa alias Mambo (the two Accused) and the two Witnesses John Makokha and Chrispinus Nyongesa for Edwin Maina Masongo during the hearing of our Case before this Honourable Court;

6. THAT the Three (3) Complainants avers that on 13^th April, 2020, while addressing a Press Conference at Kiwanja Ndege, we were accosted and assaulted by the aforementioned two defendants together with of other seven assailants who are not before this Honourable Court, but were initially all at the Office of the Directorate of Criminal Investigation at Bungoma South Police Station Compound;

7. THAT before the said Press Conference, the Chairman of iKUWEiKUWE Movement, Mr. Edward Wamalwa Simiyu sent out a Communication on iKUWEiKUWE Movement platforms inviting its members who were required to strictly comply with Covid 19 Pandemic Protocols of the Ministry of Health Regarding Public Meetings (see the annexed copy of the Communication Alert dated 13^th April, 2020 at about 7 Hours in the morning of the 13^th April, 2021);

8. The Complainants reported the matter at the Bungoma South Police Station and their reports were booked in the Occurrence Book on the same date of 13^th April 2021.

9. The Complainants sought for Medical Examination and Treatment at the Bungoma County Reference Hospital where they were treated and discharged with filled P3 Forms returned to the DCI Office at Bungoma South Police Station;

10. THAT the then DCI Officer Mr. Nzioka called one of the Complainants Edward Wamalwa Simiyu on his Cellphone to inform him that the suspects were at the awaiting interrogation and arraignment in Court to answer to criminal charges. Edward rushed to the Police Station and found them being interrogated by CID Maloki and his colleague. The Complainants are yet to get any satisfactory explanation as to why the other seven suspects who were part of the gang of nine assailants were never detained and arraigned before this Honourable Court;

11. THAT during the first mention of the above captioned Case before this Honourable Court, the two suspects introduced themselves as casual workers of the County Government of Bungoma, attached to the Revenue Directorate as enforcement officers. Ironically, on the 8^th of June 2021 during the defense hearing they changed their earlier statements by introducing themselves as boda boda operators;

12. THAT during the Court hearing on 11^th May 2021, one of the Complainants, requested the Honourable Court to allow the Complainants ask questions to the Defendants (Suspects herein), but the Presiding Magistrate declined but advised them (Complainants) to raise questions or issues through the Prosecutor in the Case;

13. THAT the Complainants in line with the advice of the Presiding Magistrate promptly forwarded vide WhatsApp Line of Edward Wamalwa Simiyu (+254- 721 956 027) their questions and issues to the Presiding Prosecutor vide his Cellphone Number and/or his WhatsApp Line + 254 726 522 8– on the same date of 11^th May 2021. Unfortunately, most of the questions and issues were not raised with the two defendants and/or their witness during cross examination before this Honourable Court (See the Annexed Print Out of the Complainants Questions and Issues);

14. THAT during the defense of one of the suspects Mr. Edwin Maina Masongo he informed this Honourable Court that the person who was addressing the Press over the issue the “infamous Jerrican Scandal (i.e., Mitungi heist) illegally and irregularly procured by the County Executive of Bungoma under the Leadership of H.E. Wycliffe Wafula Wangamati (i.e., the County Governor) was one Simiyu Nyukuri. The Complainants wish to categorically state that there is no Complainant in CR. No. 911/227/020 by the name of Simiyu Nyukuri. Instead, one of the complainants in the cited case is one Barasa Kundu Nyukuri, whose possesses National Identity Card No. is 9996356 that can be used by this Honourable Court ascertain his proper or correct identity;

15. THAT during the Defense Hearing before this Honourable Court on Tuesday, the 8^th June, 2021, the 2^nd Witness of one of the suspects, Chrispinus Nyongesa did not know the name of the person who was addressing the Press on the Mitungi Scandal at Kiwanja Ndege;

16. THAT the two suspects/defendants herein could not give a consistent date of the instance that occurred at Kiwanja Ndege. One suspect Benard Mambo Nyongesa informed this Honourable Court during his defense that the date for the impugned press conference was 4^th in a month in 2020 that he could not remember, while Edwin Maina Masongo stated that it was on 13^th April, 2020. The critical question is which was the date the two suspects and others before this Honourable Court were at Kiwanja Ndege?

17. The First Defense Witness for Edwin Simiyu Masongo informed this Honourable Court on the 8^th June, 2021 that he and the suspect were at Kiwanja Ndege at 11am on the 13^th April, 2020, while the Second Defense Witness informed the Honourable Court that he and his suspect were at Kiwanja Ndege during the instance at 9Am of the 13^th April, 2020. The question is which of the two witnesses oral evidence can be relied upon to arrive at a just and reasonable determination and judgment in the Case under consideration?

18. The Complainants wish to inform this Honourable Court that on the 13^th of April, 2020, they moved on foot from Railways Park to the Duke Hotel, before finally resolving to address the press at Kiwanja Ndege. They were in a group of less than fifteen people, including the members of the 4^th Estate (Journalists);

ANALYSIS OF DEFENSE ORAL EVIDENCE BEFORE THE HONOURABLE COURT:

That from the foregoing information, it is clear the two suspects and the two witnesses were not consistent and coherence in their oral evidence regarding CR. Case No. 911/227/020. In this respect their statements and purported evidence cannot be relied upon by this Honourable Court to determine whether or not the two suspects have a case to answer.

20. That the so called two witnesses of the Second Suspect/Defendant, Mr. Edwin Maina Masongo were coached and were part of the Nine Assailants that assaulted the three Complainants at Kiwanja Ndege on the 13^th April, 2020;

OUR HUMBLE PRAYER:

That the Prosecution and the Honourable Court should consider the Complainants’ questions and issues raised in these submissions before making a Determination and/or Ruling the CR. Case No.911/227/020, whichever way. Our request in line with directive principles of Articles 27, 33, 35, 47, 48 & 50, & 157 of the Constitution of Kenya, 2010 as read together with Section 7 of the Fair Administration Act, 2015.

Dated 8^TH JUNE 2021 at Bungoma

DRAWN & FILED BY:

SIGNATURE

EDWARD WAMALWA SIMIYU, ID. NO. …….       TEL:  +245 721956027

BARASA KUNDU NYUKURI, ID NO. ……….         TEL: +254 720 369 518

SAMSON SIMIYU MUNIALO, ID NO ……….        TEL: +254 717 937211

#eDDUHSimiyu

#iKUWEiKUWE