TPG Case Summary
Thomas Patrick Gilbert Cholmondeley is currently charged with the offence of murder under section 203 as read with section 204 of the Kenya Penal Code. He is charged that on 10th May 2006 at Soysambu farm of the Delamere Estate within Nakuru District of Rift Valley Province he murdered one Robert Njoya Mbugua.
The criminal trial began on 25th September 2006 before Justice Muga Apondi in the High Court of Kenya at Nairobi. The DPP, Keriako Tobiko gave his opening statement wherein he informed the court that he would lead evidence to prove:
I. That the gun shots were fired by the accused;
II. That the gunshots were fired from a heavy calibre rifle meant for game hunting
III. That the deceased was running away when he was shot;
IV. That the deceased died as a result of haemorrhage due to a single gunshot wound to the pelvis
V. That in an attempt to hinder investigations the accused tampered with the crime scene
VI. That the accused attacked the deceased as a retaliation or revenge for trespassing;
VII. The accused intended to cause the deceased’death.
The first prosecution witness was Serah Waithera Njoya, the widow of the deceased who gave evidence on 25th September 2006. During cross-examination by Fred Ojiambo lead counsel for the defence team, she admitted that her statement to the police dated 19th May 2005 which she signed contradicted with her evidence before the court in as far as she had stated that she had seen her husband leave the shamba carrying a panga which was later identified by other witnesses to have been used by the deceased to decapitate an impala in Soysambu farm, in the Delamere Estate. On the same day the prosecution called Peter Gichuhi Njuguna who admitted that he was with the deceased and another Kamau wa Muthoni on 10th May 2006. He further admitted that the three of them had illegally entered Soysambu farm to poach wild animals, an activity that they often undertook. In his evidence in chief, he narrated how they entered the property through gaps in the barbed wire accompanied by 6 hunting dogs, 2 of which belonged to him and another two belonging to the deceased. He stated that they had laid several traps which they checked and found empty and so decided to look around to see if they could chance upon someone else’s trap that had ensnared an animal. Whilst they were checking the traps, the witness was carrying a panga and a rungu and the deceased was carrying a panga and a metal rod known as the “killing stick”. They did indeed find one which had ensnared an impala, which the deceased immediately decapitated using his panga, removed its entrails and tossed them to the dogs. Thereafter, they identified an acacia tree and decided to go hang the impala there and continue to look for more game. They had laid ten illegal traps in the farm. He testified that they walked along a path single file heading to the tree and then all of a sudden they heard gun shots and they all “scattered”. He admitted that he did not see who fired the shots and neither was he sure from which direction they were fired. In examination in chief, he admitted that he did not know which direction the deceased ran as they all ran in different directions and he further admitted that he had lied to the court that the deceased carried the killing stick whilst it was he who had it. He did not see any of the dogs being shot. On 31st October 2006 Daniel Nyongesa, an assistant warden with the Kenya Wildlife Service confirmed that it was standard practise for KWS to shoot dogs accompanying poachers on site and further that dogs are the only animals that are proscribed in the Wildlife Conservation Act.
On 26th September 2006 the prosecution called witness number 5, Carl Jean Pierre Tundo. His evidence was critical for the prosecution as he was with the accused on 10th May 2006 at the scene. Carl’s evidence was evasive to say the least about the exact events of the 10th May 2006. He admitted that as the bush was very thick he could not see Tom very well. He further testified that whilst they were walking through the bush he stopped to relieve himself and saw Tom on one knee taking careful aim. In cross examination he stated that he saw some animals which he thought were dogs but he was not sure until later. He heard 3 or 4 shots and he ran away. In his examination in chief he identified the clothes that he was wearing that night, a pair of khaki shorts and a green polo shirt, and further identified the deceased’ panga. He told the court how later Tom called him and he ran back to the scene and saw the deceased lying on his front with blood oozing from his buttock. He said that Tom immediately removed the man’s trousers and tied a tourniquet on his thigh with his handkerchief. Tom then carried the man and put him in the car and he (Carl) then drove towards the main gate. In the meantime, Tom had already called the farm security manager and the police who were on their way. Before they could reach the gate, they met with the farm security manager, Geoff Mito, the farm manager Steven Koigi, and 2 policemen. Carl testified that Tom and the policeman, Snr Sgt. Mukolwe, helped move the deceased into the other vehicle which then took him to the hospital and Tom then gave the policeman his hospital card to use when they got there. When the deceased was taken to the hospital Tom went back to the scene with one of the policemen and he, Carl, decided to go home and inform his parents of what had happened. He admitted that the car which was bloodied was washed before the police could inspect it. Sgt Mukolwe testified on 31st October 2006 and informed the court in his evidence in chief that that evening Carl was wearing a pair of long bloodied khakhi trousers when he saw him with Tom and not the pair of khakhi shorts that Carl identified in court.
In cross examination Carl admitted that Tom did indeed tell him that he had shot a third whitish dog, and he also admitted that he has a Temporary Possession Permit (TPP) for a 9mm berretta that is licensed to his father, Franco Anthony Tundo. He denied that he shot the whitish dog or that he was carrying the gun on the said date. He also admitted that he had been told by Benson, an estate manager, that he (Benson) had seen a whitish dog lying dead beside a bush on the night of the 10th but he had ignored to tell the police about it. He admitted that the police did not swab his hands whilst in custody and neither were his clothes examined for GSR. The evidence of Carl on the number of shots is significant as it is different from the 2 other poachers who were with the deceased at the scene. Whilst he says he heard about 3 shots, the 2 poachers were certain that they had at least 5 or 6 shots.
In his evidence before the court, Franco Tundo stated that his son told him the reason he ran away from the scene when he heard the first shot was because he thought there were buffalos being shot at and not dogs. Mrs Lynn Tundo, Carl’s mother, in her evidence before the court denied the contents of her statement made to the police on 19th May 2006 that when Carl came home had washed his hands because they were “bloodied”. The denial is significant as it contradicts the evidence of her son who said that he may have washed his bloody hands after he arrived home.
Back at the scene, it was the evidence of police constable Obao, the first officer at the scene, that he remained there until 1am and the scene was then left unguarded all night. The cordoning of the scene took place on the following morning at about 9am by scenes of crime officers. According to the pictures taken of the scene of crime that have so far been produced in court, several items were moved by the scenes of crime personnel and therefore the scene was tampered with. Inspector Sambu who headed the scenes of crime personnel admitted that he moved items about before taking photographs of the scene of crime. The most crucial evidence, the spent cartridges, was not recovered from the scene until 2 weeks later. It was the evidence of Snr Sgt. Mukolwe, Geoff Mito, and Assistant Police Commissioner Gideon Mutua that despite an intensive search carried out every day from 11th May 2006, the spent cartridges were recovered on 24th May 2006 when Mr. Mutua from Nairobi was assigned to carry out the search. Some of the cartridges were lying on the ground in plain sight as per the photographic evidence presented in court. It was Mr. Mito’s evidence that Mr. Mutua and Superintendent Geoffrey Mwangi, the Investigating Officer, arrived at the crime scene on the evening of 13th May 2006 unannounced leading up to the finding of the cartridges on 14th May 2006. It was an odd visit, as admitted by Mr. Mito, because as the area is infested with dangerous buffalo, it was customary for the police to inform him of any intended visit and to come to the scene with armed policemen in case of buffalo attack, this was not the case on the evening of 13th May 2006.
On 31st October 2006 Francis Thuku Kuria the clinical officer who attended to the deceased on 10th May 2006 testified as a prosecution witness. In his evidence in chief he told the court that the patient had a bleeding injury when was wheeled into the emergency room at around 7pm that evening. He said that the patient was gasping for his last breath and he performed a cardiac massage on him. During cross examination he admitted that if one performed a cardiac massage on a bleeding patient the effect is to increase the bleeding. He also admitted that they did not establish an IV line quickly and neither did they try to stop the bleeding. As the police pathologist, Dr. Albert Gachau confirmed in his evidence the deceased showed no signs of medical intervention save for the tourniquet applied by Tom at the scene and that the gunshot wound entry was at an angle to the pelvis bone and was not directly behind.
During cross-examination of the various police officers who attended to the investigation including Superintendent Geoffrey Mwangi, they admitted to flaunting several procedural guidelines such as failing to caution the accused when he was taken to the scene to do a video recording of the events of the 10th of May on 17th May 2006, failing to record any of their investigations/findings contemporaneously, altering the scene of the crime to get a “better shot” of the exhibits, wrongly marking exhibits- more specifically, the cartridges found on the scene were from a .30-06 and yet they were marked “Mark –IV .308”, neglecting to swab the accused and Carl Tundo for GSR, neglecting to take Carl Tundo’s clothes for examination, failing to examine the Toyota Rav4 that was used to transport the deceased from the scene of crime, failing to carry out further investigations on the 3rd dog shot by the accused.
The prosecution experts who have testified so far are the police pathologist, the ballistician and the government chemist. The ballistician, Supt. Johnstone Mwongela, testified on 5th July 2007. In cross examination he admitted that he could not be sure that the bullet fragments recovered from the deceased body were fired from the accused’ gun, the Winchester rifle Serial No.117808. He confirmed that he undertook a visual and microscopic examination of the fragments but they were not “suitable for microscopic examination”, in other words they were too fragmented so as to render them un-identifiable. The bullet heads for the other shots fired at the dogs at the scene were never recovered and therefore no comparables could be used. Though it was the testimony of Dr. Mbae Nkoroi the veterinary doctor that upon gross pathology and on undertaking x-rays on the dog carcasses there were lead particles visible, the police never recovered these before the dogs were destroyed. The ballistician further confirmed that he checked the rifle and found that there was no evidence of it having been recently used – in other words it was clean. He confirmed that he swabbed the rifle again and found no soot residue on the barrel but he thereafter discarded the swab. His evidence is interesting as he confirmed that the Winchester rifle was not fired and also confirmed that the fragments from the body were un-identifiable.
The prosecution closed their case on 13th July 2007. On 27th July 2007 the court put the Accused to his defence, however the prosecution applied for details of the defence witnesses’ names and copies of their statements before they could be called. The defence objected but the court ruled and allowed the application. The matter is now subject of an interlocutory appeal in the Court of Appeal which is scheduled for hearing on 5th December 2007.