Two Narok county rangers who shot at and fatally injured four demonstrators in 2015 have been acquitted of attempted murder charges after a Nairobi magistrate court said their identification could not have been perfect due to tear gas.
"Considering the prevailing atmosphere at the time of demonstrators( tear gas and pandemonium having broken out) the identification of the accused as having shot the victims was in my own opinion imperfect and not free from error or mistake," the magistrate ruled.
Nairobi Chief Magistrate Wendy Micheni who delivered the judgement acquitted Moses Parkire Kuiyoni and Samuel Kishoiyan after the prosecution failed to prove its case beyond a reasonable doubt.
The Magistrate ruled that witness number five changed his testimony pointing fingers to the first accused instead of the second accused whom he had already identified as the shooter, saying it was not clear who shot the witness.
"The intention to kill is an important aspect in attempted murder, the prosecution must show that the accused had an intention to cause death, the deliberate intent to murder," the magistrate added.
The Magistrate further ruled that from the evidence tendered before the court, there is evidence that the two accused were present during the shooting and even some of the victims had identified the second accused as having shot them but it was not proved that the second accused was a licensed gun holder.
"The evidence from the 17 prosecution witnesses does not show that the accused was allocated any firearm at the material day, I could have overlooked the evidence but the evidence was contradicting," she noted.
The court had also found that from ballistic evidence the firearm that was assigned to the second accused was not used to injure the victims.
The victims Pw3 and Pw14 had identified both accused who had a pistol and the other had a long gun which was alleged to have been used by the accused to shoot them.
"The court has carefully considered the evidence against accused one, the offence of attempted murder. A charge of attempted murder will request to prove beyond a reasonable doubt, having considered the evidence of 17 witnesses. It's true that pw5 suffered a skull injury the injury was grave and did endanger his life," the magistrate stated.
The Magistrate cast the burden of proof to the prosecution and IPOA claiming they failed to prove the requirement of intent to kill and also failed to produce enough evidence.
On the offence of causing grievous harm, the magistrate said the prosecution did not provide any treatment sheet or P3 to show that the victim had been injured.