His judgment has raised eyebrows as it comes at a time when the Courts are meting out harsher sentences for convicts of lesser offences like rape, defilement, robbery with violence, attempted murder, manslaughter, mugging and even corruption. Scores of legal scholars and practitioners who followed the case and sought anonymity are accusing Justice James Wakiaga of “miscarriage of Justice” for setting the criminal cop free recently in Criminal Case Number 67 of 2015 in which he was found guilty of shooting to death one:- James Karanja Maina, an auditor at the defunct Nakumatt Supermarkets in the heavy evening traffic along Mombasa road using a stolen gun in gangland execution style. Some swear that there must be more than meets the eye, behind the conspicuous leniency by the Judge.
A High Court Judge in Nairobi has sent tongues wagging after he convicted a rogue Policeman of murder but let him go home scot-free instead of sending him to serve time in Prison. Traditionally a murder convict would be slapped with a mandatory death sentence as it is a capital offence in the same league with high Treason. Things changed recently after the Constitutional Court decreed that the mandatory death sentence was unconstitutional hence giving Judges discretion as to which punishments to be met out.
Other serious offences cut out for the harshest penalties to convicts include crimes against humanity (genocide, mass killings or brutal forceful transfer of civilians), money laundering, gunrunning, drug dealing and terrorism that attract the death sentence or long jail terms.
Justice James Wakiaga of the High Court Criminal Division is at the Centre of a storm for abnormally releasing Police Constable Ezekiel Momanyi Onsongo of Spring Valley Police Station in Nairobi on the pretext that the seven years the capital offence convict spent in remand during trial is enough punishment.
His judgment has raised eyebrows as it comes at a time when the Courts are meting out harsher sentences for convicts of lesser offences like rape, defilement, robbery with violence, attempted murder, manslaughter, mugging and even corruption. Scores of legal scholars and practitioners who followed the case and sought anonymity are accusing Justice James Wakiaga of “miscarriage of Justice” for setting the criminal cop free recently in Criminal Case Number 67 of 2015 in which he was found guilty of shooting to death one:- James Karanja Maina, an auditor at the defunct Nakumatt Supermarkets in the heavy evening traffic along Mombasa road using a stolen gun in gangland execution style. Some swear that there must be more than meets the eye, behind the conspicuous leniency by the Judge.
The Court was told that a different Mr Phillip (yet to be apprehended) hired and paid Constable Momanyi to shoot and eliminate James Karanja Maina, to frustrate and stop the audit he was carrying out. To worsen matters not even the Director of Public Prosecution (ODPP) has appealed the strange judgment, almost two weeks after it was pronounced at the Milimani High Court
During hearings, the Court was told that the deceased had been a target for elimination or harm by unknown insiders at the supermarket who wanted to stop him from unearthing staff and suppliers who had been flagged over massive fraud and looting of the former Supermarket’s finances in a criminal web. The deceased had been officially deployed by the management to crack the heist and help bring culprits to book. For his efforts, he had received multiple threats to his life including through anonymous emails whose authors are yet to be found and apprehended.
The Court was told that a different Mr Phillip (yet to be apprehended) hired and paid Constable Momanyi to shoot and eliminate James Karanja Maina, to frustrate and stop the audit he was carrying out. To worsen matters not even the Director of Public Prosecution (ODPP) has appealed the strange judgment, almost two weeks after it was pronounced at the Milimani High Court.
Not only are there issues with the loud leniency of the punishment but the judgment lacks would-be-obvious recommendations for parallel prosecutions of the convict for other related offences like:- illegally keeping/using a stolen firearm and abuse of office by operating as a hit-man for hire while serving as a Policeman of the National Police Service of the republic; offences that ought to be prosecuted in the Magistrate’s Court and whose punishments on conviction would ordinarily carry long prison terms.
Justice Wakiaga said in his Judgment:- “I am therefore satisfied and hold that the prosecution established beyond any reasonable doubt that the first accused (read Constable Momanyi) had the necessary malice aforethought and therefore all the three elements of the offence were established…. I therefore find the first accused guilty of the murder of James Karanja on the 7th Day of May 2015…..”
Of greater concern is that among those who testified and tendered damning evidence that led to Momanyi’s conviction is his former boss, the then Deputy OCS of Spring Valley Police Station; an Inspector Memusi and the convict’s confidant and official civilian Police Informer who informed the authorities and the Court on oath that Momanyi illegally kept the stolen gun and was hiring it to robbers and other criminals at a fee which had led to an escalation of crimes and violence in Kibagare slums and its rich neighbourhoods in Nairobi that neighbours Spring Valley Police Station.
Justice Wakiaga was told in testimony that it was the willingness of Momanyi’s confidant, the official police informer to spill the beans that his network of gangsters, who were hiring his illegal gun to commit robberies within the vicinity of Spring Valley Police Station to Runda, was busted and confronted and the same Police Informer helped in duping Momanyi to unknowingly surrender the stolen gun to his bosses through the informer after tricking him to give it to be used to rob an M-Pesa shop in exchange for a lucrative pay from the proceeds of the robbery.
Now with the Court assisted Freedom, Momanyi is out there and being a confirmed and convicted murderer criminal can easily network with his gangs of robbers in Kibagare slums and other parts of the City to go after his bosses who testified against him and the Police Informer. Their security is inevitably in peril.
Questions have also been raised about why Justice Wakiaga denied Momanyi’s co-accused:- Dennison Mose Maroko (2nd accused, a bodaboda operator) who was unknowingly hired to carry Momanyi to Mombasa road to commit the crime and Phillip Manyura Maroko (3rd accused, a senior accountant at Nakumatt Supermarket and workmate of the deceased) were denied bail and also spent 7 years in remand only to be found innocent and set free alongside the convict. The two innocents were represented by advocate John Ogada whose multiple applications for the two to be released on bond were roundly rejected.
Despite having blatantly thrown out bail pleas by the bodaboda rider (2nd accused) Justice Wakiaga made a strange condemnation of the prosecution during his judgment:- “…..this court and all those who shall read this judgment will never understand why the second accused was not made a state witness and why he carried the Cross for the first accused for the last 7 years”
The murder weapon, the pistol, which was positively identified in court during the hearing had been robbed from a Civilian Gun holder in the Hardy area of Karen and handed over to Constable Momanyi by watchmen who picked it up by the roadside, hoping that he would officially record and hand it over to Police for a possible return to the rightful owner. But he kept it to himself and resorted to using it for criminal activities including the murder of Karanja.
The crime was committed on the evening (6.30 pm) of 7th May 2015 as the deceased left work at Nakumatt, Mombasa Road. The three accused were arrested and first appeared before Justice Luka Kimaru on July 10 of the same year.
They later appeared before Justices Ombija, Jessie Lesiit and J.Korir separately on 27th July, 30th July and 17th September before the file was handed to Justice Wakiaga where the case started proper, on 1st March 2016 and closed on 28th July 2022 after hearing twenty-seven prosecution witnesses and four defence witnesses.
