The Director of Public Prosecutions (DPP) has appealed against a decision to acquit Embakasi East Member of Parliament Paul Ongili alias Babu Owino of the charge of misusing his gun in relation to the shooting of Felix Orinda, popularly known as Dj Evolve.
In an appeal lodged in the High Court, Assistant Director of Public Prosecutions Dorcas Rugut challenged the judgement by Milimani Senior Principal Magistrate Bernard Ochoi rendered on Tuesday to free the lawmaker of the charge for lack of evidence.
The MP had been accused of shooting and injuring DJ Evolve at B Club in Nairobi's Kilimani area in January 2020.
He was acquitted of the charge on grounds that the prosecution did a shoddy job during the investigations as the investigators failed to tackle crucial areas.
In his ruling, Magistrate Ochoi freed the legislator saying the prosecution had failed to prove beyond a reasonable doubt the charge against him.
"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," Magistrate Ochoi ruled.
According to the magistrate, the oral evidence of Orinda who was the victim in the case was very crucial. Surprisingly, the DJ was never called as a prosecution witness and he turned 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 noted.
Magistrate Ochoi further stated 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?” the magistrate posed.
The court ruled that the prosecution did not even produce medical evidence on the nature of 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?" The trial magistrate asked.
Convict Babu Owino
Aggrieved by the entire decision of Magistrate Ochoi, Rugut now wants the Superior court to set aside Ochoi's decision and substitute it with a conviction.
"The DPP prays that its appeal be allowed and the judgement acquitting MP Owino under Section 215 of the Criminal Procedure Code Chapter 75 Laws of Kenya be set aside and be substituted with a
conviction," Rugut stated in appeal papers.
According to the public prosecutor, the magistrate erred in law by not considering the overwhelming evidence on record against MP Owino.
"The trial magistrate erred in law and fact by acquitting Owino without considering the weight of evidence and testimony adduced by the prosecution witnesses," Rugut added.
The DPP says the magistrate ignored to consider the credible and cogent evidence adduced by the 10 prosecution witnesses.
Further, Rugut argues that the trial magistrate erred in law by finding that the ballistic expert report was inconclusive.
"The trial magistrate erred in law and fact by finding that there was no evidence of the victim (DJ Evolve) having sustained gunshot wounds and that MP Owino did not intend to shoot the victim," Rugut stated.
The appeal by the DPP is pending hearing.