Akasha Criminal Case
Introduction
This paper focuses on three accused tourists, Jananovic Milan, (from now on referred as A1), Jackson, from now on referred to as A2), and Mohammed Omar Abdullahi, (from now on referred as A3) are all charged with the murder offence contrary to Section 203 as reading together with Section 204 of the Penal Code. The particulars are that on 28th March 2002 at Sam Petrol Station in Mombasa District within Coast Province, jointly with others not before the court, murdered Kamaldin Akasha, the immigrant. That said, this paper aims at focusing on proceeding involved from arrest to conviction.
PW1, Salim Bajaber, Salim, landed at Mombasa Moi International Airport Mombasa on 28th March 2002. Baktash Akasha who was meant to collect him delayed. Instead, he was given a lift by Mama Farida Hussein Baragha. On the way, at the airport toll station, he saw Baktash Akasha heading for the airport. Baktash did not see him, though. Mama Farida Hussein aforesaid took him to his house at Ganjoni. In the space of 15-20 minutes, Baktash Akasha was at his door. He accompanied Baktash to Mama Ngina Drive. It was about 8.30 when Issa (PW2) rang Baktash Akasha (PW 9) and disclosed that the deceased had been shot dead. They drove towards the disclosed scene of the murder. They were told the deceased had been taken to Makupa Nursing Home. On reaching the said nursing home, they confirmed that the deceased had succumbed to his injuries. They then took the body to Pandya Memorial Hospital for post-mortem and later for burial.
PW2, Issa Ali Saad, Issa, went to deceased’s petrol station. The bus left him there. He remained to talk to petrol attendants and the deceased. He heard gun-shots and hid. When calm returned, he came back to the Petrol station and found the deceased seated in the same position bleeding. A young man, he came to know as Amani, whom he found at the station asked him to take him to the house his house. He left Amani at the said house then to Makupa Nursing Home where the deceased had been rushed for medical attention.
PW3, Nurdin Akasha Abdallah, Nurdin’s testimony is that Issa (PW2) on reaching SamSam Petrol Station shouted that it was Nuri who killed the deceased. He wrote the statement on 15th November 2002 because of worries – two Europeans were looking for him. He feared for his life (Surette, 2016).
That there was no need of calling the police as he would bribe his way out and after that would kill them like fucking dogs. That he would do to Nuri exactly what he did to Nuri’s father and brother. While the conversation was going on the party arrived at the Grand Regency Hotel. Unknown to Nuri, Nuri’s friend Ali and Abed had phoned lawyer John Khaminwa who had arranged for the police. Inspector Ngatia Eregi, among the witnesses, arrested Milan (A1) and Waweru (A2). He identified the two accused in court.
In cross-examination, Nuri admitted that Baktash (PW9) told him that Issa (PW2) told the police that it is him (Nuri) who had killed the deceased. Yet when he met Hassan at the police station, he (Hassan) did not tell him (Nuri) so. Nuri made a statement at the police station on 30th March 2002 but admitted that he did not mention Milan (A1) or Waweru (A2) as having any connection with the death of the deceased.
Nuri admitted having been detained for nine days as a suspect in the murder of the deceased. That Nuri was the chairman of the committee dealing with the distribution of the estate of the late Ibrahim Akasha Abdallah. Before distribution was completed, Nuri’s mother (Hayat) and Fatuma (3rd wife of Ibrahim Akasha Abdalla) withdrew money from a trust account without the consent of the rest of the family. This fueled animosity within the Akasha family.
Most significantly, Nuri’s evidence touched on the animosity within the Akasha family. The suspicion that Nuri had organized the killing of the deceased. That Milan (A1) was a suspect in the death of Ibrahim Akasha Abdallah in the Netherlands concerning the hashish case. Confronted with the evidence tendered in High Court Criminal Case No.5/2003 REPUBLIC V AHMED OMAR ABDULLAH, Nuri confirmed that he was meant to testify in that case before the Attorney General terminated the same by way of a Nolle – prosequi. PW4, Mbogo Donald Mugo, Mugo, received three spent cartridges 7.65 mm. Calibre exhibits A1, A2 and A3. He equally received a sub-machine gun 9 mm calibre model CS P2009 bearing serial No. SP 31342. He also received 16 rounds of ammunition in calibre 9mm parabarum exhibit B. He examined the same. He formed the opinion that exhibit B is a firearm as defined under the Firearms Act (Cap 114 Laws of Kenya).
Exhibit C1 – C16 comprised of 16 rounds of ammunition in calibre 9mm parabarum. He opined that such rounds of ammunition are suitable for use in firearm such as exhibit B since three rounds picked at random from the lot were successfully test proved in exhibit C1 – C16 were alive and are ammunition within the meaning of the Firearms Act (Cap 114) Laws of Kenya. Mugo compiled the report which he produced as exhibit 4. He confirmed that exhibits A1, A2, A3 on 7.65 machine gun could not have been fired from the 9 mm pistol presented for examination. He confirmed that the three spent cartridges must have been fired from model 61 sub-machine gun commonly referred to as Scorpion.
PW5, Evans Kinyanjui, Kinyanjui an immigration officer was asked by S.S.P. Ngatia Eregi to verify the endorsement on the passports of Milan (A1) which was required as evidence against the holder. He was asked to confirm the dates when the holder of the passports had either arrived or departed from Kenya. The passports in issue belonged to Stojananovic Milan. One in French, the other in Former Yugoslavia. The French passport was issued on 20th October 2004. According to this passport the holder was born in Belgrade in Yugoslavia on 18th February 1956.
Former Yugoslavia passport was issued on 7th July 1999 at Paris. According to this passport, the date of birth is indicated as 18th December 1956. The place of birth is Cukaraca. It does not show whether that place is in Belgrade. The names in the two passports are the same. The photograph appears to belong to the same person. The expiry date in the French passport was 19th October, 2004. The expiry date in Former Yugoslavia passport is 2009. From the brief given to him by the investigating team, he was of the persuasion that Baktash Akasha was pointing accusing finger at Nuri Akasha alias Tinta. From a further brief given to him by the investigating team, he came to learn that a white man said to be a close friend of Nuri Akasha by the name Milan was also arrested. Ngatia confirmed that, that Milan is not the one charged in court as accused No.1. Milan’s whereabouts are not known (Arome, 2016).
Ngatia briefed the P.P.O. The coast that there were three (3) possible suspects. Nuri Akasha alias Tinta, Baktash Akasha and a white man known by the name Milan. That there was no tangible evidence against the three suspects through—the P.P.O. Agreed, and the main suspects were released. The mysterious Milan disappeared. Nuri Akasha (PW9) in his evidence, claims that he is dead. The police have not ascertained this. The prosecution led no further evidence regarding him and his role in this whole saga.
Ngatia then started following another lead given to him by an informer. He summoned Nganga Waweru (A2) and questioned him about the death of Kamaldin. Waweru denied knowledge of the same and was released after that. In a ruling delivered on 8th August 2006 I held that the tape is not admissible in evidence, inter-alia, that in a criminal case the judge always has the discretion to disallow evidence if strict rules of admissibility would operate unfairly against an accused (see KURUNGA SON OF KANIU V REPUBLIC [1955] I ALL E.R. 236
At that stage, the prosecution closed its case. The two defence counsel submitted that the prosecution had failed to establish a prima-facie case to warrant all the accused being put on their defences. Dr Mugnai for the 1st and 2nd accused submitted forcefully that the charge was drawn on 26th November 2004. Kamal Akasha was murdered on 28th March 2002. That was about two years and six months after Kamaldin’s death.
A month after the incident, The Attorney General preferred charges of murder against the 3rd accused alone in Mombasa H.C. Criminal Case No.5/2003. The plea was on 9th April 2003. The trial commenced on 5th May, 2003. The prosecution called 12 witnesses out of a list of 14. Out of the 12 witnesses called none mentioned Milan (A1) or Waweru (A2) adversely. The Attorney General then entered a Nolle-prosequi on 21st February 2005 in respect of Mombasa H.C. Cr. Case No.5/2003. The purpose, as made known to the court, was to facilitate a joint trial of Ahmed Omar Abdallah (A3), Milan (A1) and Waweru (A2).
That apart from the evidence of the 12 witnesses who gave evidence at the Mombasa trial, the only additional testimony in the present trial is that of the tape-recorded evidence relating to the alleged threat and/or utterances by Milan (A1) to Baktash Akasha. That to the extent that the prosecution has taken an old case it had mounted against the 3rd accused and rehearsed it with no credible witnesses or evidence against the 1st and 2nd accused, to that extent is the prosecution’s case doomed,
That it is common ground:
1) That the deceased, Kamaldin Akasha was the son to Ibrahim Akasha Abdallah, since deceased.
2) That the deceased Kamaldin was half – brother of Nuri Akasha alias ‘Tinta.’
3) That Nuri Akasha alias Tinta (PW3) is the son of Hayat Akasha, the 2nd wife of the late Ibrahim Akasha.
4) That the late Kamaldin Akasha and his brother Hassan are the sons of one Karim kasha the first wife of Ibrahim Akasha whom he had divorced.
5) Baktash Akasha is the son of Ibrahim Akasha Abdallah by his third wife –Fatuma Akasha
6) Ibrahim Akasha Abdallah was killed by a gun ‘man in Amsterdam Holland in a mafia-style execution. He was in the company of Hayat, and Nuri Akasha was in Germany which bordered Holland and was the first to arrive at the scene.
The following week Sunday Nation had a story under the heading “AKASHA’S SON IS KILLED IN DRUG SHOOTING”. Attack mirrors his father’s death in Amsterdam. The Sunday Nation further reported said that the death of Magdi a drug Baron in the Netherlands also mirrored that of Ibrahim Akasha. That the Akasha family members are taking revenge. That it is an inside job. These events, on the evidence, as they relate to the Milan (A1) and Waweru (A2), 1st and 2nd accused respectively are as follows:
(a) That Nuri Akasha alias Tinta introduced the late Ibrahim Akasha Abdallah, to Milan(A1) to do drug business. Waweru (A2) encouraged the late Ibrahim Akasha to relate to Milan (A1) business-wise.
(b) That Milan’s (A1) house at Nyali in Mombasa was burgled into and a substantial cargo of hashish stolen from there.
(c) That hashish was sold to Magdi a drug baron-cum-café owner in Amsterdam.
(d) Milan (A1), according to Baktash Akasha, threatened the family that he would eliminate them one by one. The tape where the alleged threats are contained is ruled inadmissible in evidence by the court. That leaves oral evidence of Nuri Akasha, and Hayat Akasha.
These events, on the evidence, as they relate to Ahmed Omar Abdullahi alias Amado (A3) are as follows: that he was identified by Mugo (PW4) at an identification parade as the gun ‘man. Thus, the prosecution’s case as it relates to Milan (A1) and Waweru (A2) is purely circumstantial evidence. At the same time, the prosecution’s case as it relates to Ahmed Omar Abdullahi (A3) is based on direct evidence. The defence case, so far as is discernible from the cross-examination and submissions on no case to answer, as relates to the Milan (A1) and Waweru (A2) is as follows:
(a) Nuri Akasha alias Tinta murdered Kamaldin, (PW8) the son of Hayat Akasha, (PW16) the 2nd wife, of the late Ibrahim Akasha Abdallah.
(b) That Nuri Akasha and her mother Hayat are shifting the blame on Milan(A1) and Waweru (A2) and portraying them as having been the hidden hand behind the murder of Kamaldin.
(c) That there emerged, so to speak a “civil war” in the late Ibrahim Akasha Abdallah’s “empire” immediately following his death by reason, inter-alia, of a foreign account in the Netherlands. Ibrahim Akasha Abdallah and Kamaldin, the deceased, used to travel together quite often to service this foreign account, among other things.
The defence, case as it relates to Mohammed Omar Abdullahi (A3), so far as is discernible from the cross-examination and counsel’s submission is as follows: – Some witnesses summoned in the Mombasa trial like Zachariah Charo (CD 2), were conveniently excluded from this trial. The court should infer that their evidence if received, would have been opposed to the prosecution’s case. Section 306 (1) (Supra) is the equivalent of Section 210 of the Criminal Procedure Code, which relates to Criminal trials before the subordinate courts in our jurisdiction (Anderson, 2017). What amounts to a prima facie case under the equivalent of the Tanzanian provision was considered by the court of Appeal for Eastern Africa in RAMANLAL BHATT V R (1957) EA 332 on page 334 thus:
A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true, as WILSON, J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed, it is weighty enough to prove the case; that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a “prima facie case.” Still, at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if the defence does not explain”.
Applying those principles to the current case it is clear to me that the prosecution set out to prove by way of circumstantial and direct evidence that it was Milan (A1), Waweru (A2) and Ahmed Omar Abdallah alias Amado (A3) who killed Kamaldin on the night of 28th March 2003 at Sam petrol station.
The first fact which the prosecution set to prove was that there was drug business relationship between Milan (A1) and Waweru (A2) on the one hand and Ibrahim Akasha Abdallah (senior Akasha) and Kamaldin Akasha, the deceased herein, on the other hand.
That Milan’s (A1) house at Nyali in Mombasa was burgled into and a substantial amount of hashish stolen from that place. That hashish was sold to one Magdi, an Egyptian drug merchant with a coffee shop in Amsterdam, Holland. Ibrahim Akasha Abdallah’s family then pocketed the proceeds.
In an attempt to settle the dispute Ibrahim Akasha Abdallah flew to Amsterdam. He was shot dead on 3rd May 2000 in the Red-Light District in the company of his wife Hayat while end route to meet Magdi and Milan (A1). It disturbed business in the Red-Light District with the “girls” chasing the gunman on foot. Magdi cautioned Hayat not to mention Milan’s (A1) name contemporaneously with the shooting of Ibrahim Akasha Abdallah. Magdi thought that it would endanger her life. In which event Magdi thought that it was Milan (A1) behind the murder. The Netherlands police and the Kenya police have to date not established who was behind this heinous crime.
Against this backdrop, I am of the persuasion that the evidence in this case as relates to Milan (A1) and Waweru (A2) was entirely circumstantial. In R -Vs- KIPKERING ARAP KOSKE & ANOTHER [1919], 16 EACA 135, 136, the Court of Appeal quoted from WILLS ON CIRCUMSTANTIAL EVIDENCE (6TH EDITION, P311) thus: “ In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation on any other reasonable hypothesis other than that of his guilt.” The evidence adduced by the prosecution to that extent does not satisfy the legal requirements of circumstantial evidence to put Milan (A1) and Waweru (A2) on their defence.
As against Ahmed Omar Abdullahi (A3), there is the evidence of Mugo (PW4). No doubt Mugo (PW4) is a single identifying witness whose evidence has to be tested with the greatest care and circumspection, (See RORIA V R (1957) E.A. 583. That cannot be done unless the identifying witness had made a report as to whether he/she could identify the assailants and given the description of the assailants to the authorities.
His ability to identify the accused is then to be tested on an identification parade (see R V MOHAMMED BIN ALLUI (1942) EACA 72, AND SHABAN BIN BONRDI [1940] EACA 60. Having these principles in mind, I am of the persuasion that the identification of Ahmed Omar Abdallah (A3) was faulty. There is nowhere to pick any material discrepancy between the description of the third accused given to the police by the witness when first seen by him and the accused actual appearance. As a matter of law, I am of the persuasion that identification by Amani Safari (PW1) is almost worthless. It is trite law that only identifying witness evidence must be tested with the greatest care and circumspection (see PETER MWANGI MUNGAI V REPUBLIC CRIMINAL APPEAL NO.140/2000 (C.A.):
The police omitted to summon Daniel Kiarie Mwangi (PW6) to the identification parade yet he was at the scene and gave evidence in court. Equally the police omitted to call Zakaria Charo (CD2) a witness who gave evidence in Mombasa H.C.Cr. No.5/2003: – R V AHMED OMAR ABDULLAHI (A3) and absolved accused 3. It is trite law that when the prosecution fails to call a witness whose evidence is material, then the court ought to infer that his evidence would have been opposed to the prosecution’s case (see BUKENYA V UGANDA (1967) E.A.
Those omissions are so material and beg so many questions. To my mind, it lends credence to the defence assertion that there was a massive cover-up by the police. That the three accused persons are merely scape-goats (Sinclair, 2019). In my judgment, the real killers of the deceased are out there. In coming to that conclusion, I have particularly in mind the evidence of Baktash Akasha, who said that Kamaldin’s death was not a one-man show – several people were involved. It could have been a family feud as much as it could have been international drug trafficking curtail war (Aspholm, 2016). The modus operandi mirror the Chicago drug cartel “wars” during the “reign” of Al Capone as captured in the book “CHICAGO GANG WARS OF THE 1940s”. No wonder Hayat Akasha testified that her husband was involved in mafia-like activities.
For those reasons, the prosecutor finds as a matter of law that the prosecution has failed n its duty to establish a prima facie case against any of the three accused person. If there was any evidence against them, the same has not been brought to the attention of the court with the consequence that the court has not benefited from the same. Accordingly, the prosecutor enters a verdict of NOT GUILTY under Section 306(1) of the Criminal Procedure Code. The prosecutor acquits all the three accused persons of the charge of murder. They are set free unless lawfully held for some other lawful reasons.
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