Central Police Station OCS Samson Talam and Police Constable James Mukhwana petitioned the High Court to halt their prosecution in connection with the murder of teacher and blogger Albert Ojwang while in police custody.
Through lawyer Danstan Omari, the officers argue that their arrests by the Independent Policing Oversight Authority (IPOA) are premature and procedurally flawed, asserting that an inquest should precede any criminal proceedings.
They argued that under Sections 385 to 388 of the Criminal Procedure Code, deaths occurring in police custody warrant an inquest to ascertain the cause before initiating arrests.
They claimed that bypassing this process undermines due legal procedure and could impede the pursuit of justice.
Talam maintained that he was not on duty when Ojwang was detained, having delegated responsibilities to his deputy.
He further alleged that his subsequent arrest was conducted improperly, stating he was booked by a civilian IPOA officer at Lang’ata Police Station, contrary to legal requirements that only serving police officers perform such duties.
Mukhwana, identified as the cell sentry on the night of Ojwang’s detention, is currently held at Capitol Hill Police Station.
IPOA has requested a 21-day detention to facilitate comprehensive investigations, citing concerns over potential witness interference.
Mukhwana’s legal team opposes this, highlighting his voluntary cooperation with authorities.
Three civilians who were used by police to torture to death Ojwang were Sunday arrested over his murder. They were expected at the JKIA court over the issue.
They have implicated at least two police officers at the station as the ones who facilitated them to the cell where Ojwang was held with a mission to milk information from him.
One of the officers under arrest is said to have even provided them with a riot baton that they used in the mission.
After the victim collapsed in the cells, the three were freed. This came as police and officials from IPOA said they cannot trace two other police officers wanted over the murder.
They include a senior officer who was at the station on June 7 when the incident happened. Ojwang was arrested in his Homabay home over claims of false publication and brought to Nairobi where he was booked and later clobbered to death. He died on June 7 hours after his arrest and detention at the cells.
Also in custody is a technician who tampered with CCTV camera system at the station. The detectives backing IPOA arrested a technician who installed a CCTV camera system at the station.
The technician is the same one who was called to delete and format the system after the murder of Ojwang. He has admitted his involvement in the mission and added he was paid Sh3,000 for the work. He was also expected in court.
Experts were trying to recover the lost data to back the ongoing investigations. IPOA was Friday allowed to detain Mukhwana for a week as investigations continue into the death of Ojwang.
Mukhwana was arrested on June 12, and IPOA argued that releasing him at this point there would be a likelihood of interfering with the crime scene, evidence including critical documents.
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