The prosecution has opposed the release of police officer Duncan Ndiema charged with the killing of 13-year-old Yassin Juma in Nairobi’s Huruma area in March this year.
An investigator with the Independent Policing Oversight Authority (IPOA), Benedict Otieno, argues that Juma lied to the court that he went to Mbagathi Hospital after showing symptoms of COVID-19.
Ndiema was on Tuesday charged with the murder of 13-year-old Yassin Moyo. Appearing before High Court Judge Luka Kimaru, he pleaded not guilty and was remanded at Capitol Hill Police Station pending the hearing of his bail application.
The High Court had earlier deferred his plea taking after his lawyer said that the officer had been admitted to the Mbagathi Hospital pending the results of a coronavirus test.
However, on Wednesday the investigating officer told the court that the accused never visited the said hospital but was in Uthiru and Ndumbuini areas, 15 kilometres from the said hospital.
“I as the investigating officer having received the orders from the court proceeded to Mbagathi and received information from the management of the hospital that they had not treated the accused that day as alleged,” reads the application.
IPOA says such conduct and giving misleading information to the court is indicative of his reluctance to adhere to court mechanisms and should be a factor taken into denying him bail and bond.
It is IPOA’s argument that Yassin’s family have received threats and intimidation from persons suspected to be the agents and proxies of the accused hence there is a likelihood of him intimidating the witnesses and case interference.
“If accused person is released on bail his release will disturb public order or undermine public peace or security and thus pre-trial detention will be necessary to preserve public order,” says IPOA.
However, the accused; Duncan Ndiema, through lawyer Danstan Omari argues that he has a constitutional right to fair trial which right entails the right to be presumed innocent until proven guilty.
He argues that he has always cooperated with the investigating agencies during the course of the investigations which commenced in April 2020 and has at all times willingly presented himself to the DCI headquarters and attended to IPOA for purposes of recording statements.
“Detention of an accused person while there is no compelling reason is a violation of the aforesaid right. The detention of the Accused person/applicant while there is no compelling reason shall be an infringement of his constitutional rights,” reads his application.