It is a big win for Embakasi East MP Paul Ongili alias Babu Owino after a Nairobi court acquitted him of the charges of misusing his gun in relation to the shooting of Felix Orinda, popularly known as DJ Evolve, for lack of evidence.
In a judgement delivered on Tuesday, August 29, Milimani Senior Principal Magistrate Bernard Ochoi freed MP Owino after finding that the 10 prosecution witnesses availed did not prove the charge against him beyond a reasonable doubt.
"Having evaluated the evidence before me, it is my finding that the prosecution did not prove the case beyond reasonable doubt, the victim denied that he quarrelled with the accused. For the above-stated reasons, the accused is found not guilty and acquitted under section 215 of the CPC," the magistrate ruled.
The MP had been accused of shooting and injuring DJ Evolve at B Club in Nairobi's Kilimani area in January 2020.
While acquitting the MP, the magistrate said that the prosecution did a shoddy job during the investigations of the case.
According to the magistrate, the oral evidence of Felix Orinda who was the victim in the case was very crucial, surprisingly, Felix Orinda was never called as a prosecution witness and he turned out to be a witness for the defence.
"l believe the evidence of the DJ is very crucial evidence as he was a victim of the said shooting and could have seen what transpired before the incident surprising the said Orinda who was expected to be a key witness for the state as even confirmed by the investigation officer was not a Prosecution witness but it turned out that he was a defence witness," Ochoi noted.
"In fact, from the cross-examination of the investigation officer Dennis Miheso he stated that he did not record a statement from Orinda, the victim of the alleged shooting and one wonders whether it was a case of deliberate or a case of negligence as he did not state whether he approached the said victim for purposes of recording a statement," the magistrate added.
Magistrate Ochoi further noted that the main witness was never called to testify against Owino.
“Why did the investigating officer not avail the person who recovered the bullet head and cartridge to testify?” Ochoi posed.
The court ruled that the prosecution did not even produce medical evidence on the nature of the injury which would have indicated the weapon used and the ammunition which was used to inflict the injury.
"If the bullet head was recovered on the wall as claimed, was it not necessary for a ballistic expert to visit the scene and adduce evidence? Was it not necessary to provide medical evidence to show that the bullet exited from DJ Evolve's body and landed on the wall?" He added.
The court further noted that the victim of the alleged offence denied that they had a quarrel with the MP while at the club and never saw the MP shoot him.
The magistrate questioned why the police did not do their own investigations after the shooting incident, instead of relying on the CCTV footage provided by B Club and a video clip recorded by an unknown person.
The magistrate noted that after he personally viewed the CCTV footage produced in evidence, he noticed it was unclear what was happening as the lighting of the club was down with no sound.
He said from the footage he noticed the MP pointing something black in the direction of the DJ who fell immediately.
He, however, said he could tell with certainty what the MP pointed in the direction of the DJ whom Owino later rushed to Nairobi hospital for treatment.
He went ahead to note that the CCTV clip did not capture whether the MP and the DJ had an argument before Orinda was shot and fell down as alleged by the investigation officers.
"In my view, the prosecution did a shoddy job to prove that the injury the victim sustained was from Owino's gun. The court can not be left to rely on a video played in court," the magistrate ruled.
He added: "From the evidence herein l find that investigations by police were shoddy since they did not cover crucial areas."
Following the finding Ochoi directed the DCI to allocate senior officers of the rank of Inspector to investigate such matters in the future.
Whether the MP was drunk or not was hard to tell since the investigating officer did not subject the MP immediately to any form of test to establish the alcohol content in his blood.
From the CCTV footage, the magistrate noted that the MP had been smoking what appears to be shisha but it was difficult to tell whether he was drunk or not.
The magistrate blasted the police in the manner in which investigations were conducted saying they did not produce the alcohol level in the blood of the MP.
"The prosecution did not establish the level of drunkenness since DNA and swaps results were not brought to court as required by law," ruled Ochoi. "I find the aspect of drunkenness was not established."
The court however dismissed Owino's defense of not being disorderly and drunk while at the club as the waiter who served him and his friend who were prosecution witnesses confirmed that he was taking tequila.
"No evidence was available to show the state of sobriety of Owino on the allegation of being disorderly," the court ruled.
This is after the MP had told the court that none of the witnesses who testified in court that he behaved disorderly at the club.
DJ Evolve did not see Babu Owino shoot him
Last month, DJ Evolve testified in court and submitted that he did not see the legislator with a firearm during the shooting incident that occurred at a Nairobi nightclub in January 2020.
While testifying virtually from his bed, the DJ said he does not know what happened to him as he only found himself in an ambulance.
He, however, acknowledged to the Nairobi court that he was indeed shot and injured by a bullet on the fateful day, but that he does not know from which gun.
The DJ further told court that Owino was his personal friend since 2017 and was not capable of hurting him.
Orinda told court that since the incident Owino has been paying for his medical bills and other personal expenses totaling over Ksh58.6 million.