The trial judge of the High Court Steven Mubiru has called for the trial within a trial in Kanyamunyu’s case following the discovery of uncoordinated request forms which the defence side called forgeries.
Matthew Kanyamunyu the businessman and his fiancée Cynthia Munwangari are accused of shooting a child rights activist Kenneth Akena in November 2016. On the allegation that Akena scratched Kanyamunyu’s car and when he came out to apologise, Kanyamunyu shot him in the stomach.
However, the two pleaded innocent on allegations that they were just good samaritans who found Akena shot and took him to the hospital, a move which prompt trial in the court.
So far the trial court has received 11 witnesses, Robinah Kirinya is the 11th who started on Thursday to give her testimony which she finished on Friday a few minutes to the midday.
In her testimony, Kirinya said that she received two requests of tests from Police in correspondence to this case. However, the second request was dismissed by the court since it was about the third accused who was not in the court and Mubiru guided the witness and her prosecutor to concentrate on evidence pinning the two accused people present in the court.
The first request was made on November 18, 2016, which had a projectile and was marked exhibit (1).
She narrated, “They wanted me to examine and determine the calibre and the possible gun which was used to discharge the possible exhibit. The exhibit 2a was a coat navy blue, 2b was navy blue trouser. Exhibit 3 was a sky blued long-sleeved shirt. They wanted me to examine whether there were traces of gunshot residue on all of them.”
She added that exhibit 5 and 6 were motor vehicles 725G and 548M respectively, also they wanted her to examine and determine whether the two vehicles had ever come into contact. They also requested her to determine traces of gunshot residue on exhibit 6.
“Examination and tests were done, I wrote a report of the findings on May 31, 2017, I signed and I sealed it,” she added.
Kirinya said that a projectile was a red bullet of the round nose and round ammunition of .22 LR inches, bearing 8 riffling impression which twists to the left and it was fired from a 2.22 firearm such as a pistol that twists to the right.
“Due to weight and the length of bullet or projectile, the most probable weapon to have been used as a pistol or a revolver. A revolver is also a pistol with a revolving chamber.
“A Griess reagent was applied on exhibit 2a, 2b, 3 and 4 however the exhibits 2b and 4 had nitrate radicles. On exhibit, the radicles were found on edges of the righthand pocket and inside while 4 had the nitrate radicles on chest righthand side. The two were subjected to the X-ray and red Barium, Antimony elements were detected at the same parts as before,” she said.
She also testified that she carried an examination from the two vehicles in question that exhibits 5 and 6, she noted there was contact between the two vehicles at the points bearing scratches. Also noted that 6 had gun short residue inside the left clave of the car.
Discrepancies in the request forms.
Before the beginning of the cross-examination by the defence side, one of the Kanyamunyu’s lawyers Mcdusman Kabega objected to the request forms that police sent to witness 11.
“My lord before, I proceed with the cross-examination, I see an uncoordinated document that was sent. The original request stated that Malik car Bond Jinja road while the photocopy reads Jinja road Junction,” said Kabega.
His matter made Mubiru ask for the request form for him to review them by his eyes. When he reviewed them he also discovered the information on the request forms was not marching.
“The photocopy has Akena Kenneth but the original has Akena Kenneth Watmon, where does the third name come from? The original has the make of the vehicle Toyota Land Cruiser TX but the photocopy does not have it, i see a lot of material difference here, counsel you need to first correct this as it has been raised by the defence side,” said Mubiru.
However, the lead prosecutor Jonathan Muwaganya asked the court for the help of one of the officers who wrote the request form. “My lord I beg to ask for help from the officer who made.”
Although he was given time, his explanation did not satisfy the defence counsels since they believed that indicating the name of their client in the request form and revealing their suspicions about the nature of gun could have created a certain level of bias to the examiner who conducted the tests on the projectile, coat, trouser, shirt and dress. Furthermore the documents which included the biasing information were not presented to court; only the copies without that detail were presented to court.
Mubiru had the plea and asked Muwaganya why he did not present all documents to court. “Counsel , I see some new documents here why didn’t you present them in court?” Asked Mubiru.
Muwaganya said that some were photocopies which were not in the line with what the witness was telling.
However the defence side refused his argument and said “The copies were written by a non-officer and my lord this is a forgery,” said Kabega. But Mubiru refuted his suggestion and said that the court has to first confirm.
“My lord this is material prejudice as far as the outcome of the examination is concerned. It’s my prayer lord that the court expunge this report from this case,” said Kabega.
Although Mubiru did not accept Kabega’s plea, he admitted that there was some material discrepancies and attempted concealment which at face value may prejudice the accused case.
“If the court is misinformed that creates prejudice since there is a lack of information which I wouldn’t have known if they didn’t raise the complaint. The court needs to know why,” he said.
Muwaganya said, “ My lord we need to invite the person who wrote these requests.”
Mubiru agreed with him. “So we are going to have a trial within a trial because this is an argument of fact. We shall call the one who wrote them, who took them even who received them. So far the witness of the PW11 is suspended till the trial within the trial is done to rectify the facts. For now, the court has adjourned till next week on Tuesday afternoon when the trial within the trial will commence.”
Even though Kanyamunyu’s defense lawyers raised a very legitimate concern, it is very unlikely that the judge will rule to expunge the gun shot residue (GSR) report whatever the findings from the trial within a trial. He shall most definitely sustain the report in order not to weaken the already weak prosecution case in a matter where a conviction has always been expected even demanded at any cost by the public. Most members of the public believe that a conviction seems to be a fait accompli as no judge would want to ride the tide against the strong public opinion that has oppressed Kanyamunyu since the beginning of this case.