Court convicts man in K’osewe shooting

Tuesday, September 28th, 2021 00:00 |
Tom Oywa Mboya at a past court appearance. He was yesterday jailed for 23 years for attempted murder. Photo/PD/Charles Mathai

Tour operator Tom Oywa Mboya is staring at the possibility of spending his entire  life in prison, after he was yesterday convicted of attempting to kill K’osewe Ranalo Food restaurant owner-William Osewe over a woman in 2016.

Mboya who is a tour operator was yesterday found guilty and convicted by Milimani Chief Magistrate Martha Mutuku after the court ruled that the prosecution had proved the case against him beyond reasonable doubt. 

“I have considered the evidence before court, and it is not in dispute that Mboya shot Osewe. He did so not once but four times,’’ the court ruled.

Intention of killing

Attempted murder is often punished with a life sentence or a lengthy prison sentence. 

Delivering the judgement, Mutuku noted that the offence of attempted murder is done with an intention of killing the other person.

She noted that Mboya had shot at Osewe  several times and that she had considered the evidence of a security guard who saw him raise his gun and shoot several times at the complainant.

The magistrate said that a doctor from Aga Khan Hospital, who testified in court had said that Osewe had an object lodged in his body and had even developed problems in his genitalia following the gun shot that affected his spinal cord. 

Mutuku also dismissed Mboya’s defence that Osewe had on various occasions provoked him accusing him  of having an affair with his wife.

“The retaliation by the accused person if at all there was any provocation, did not in any way warrant the manner in which he shot Osewe,” noted Mutuku.

“l dismiss the defence as the prosecution has proved the attempted murder charge and I find him guilty of the offence under 215 of the Criminal Procedural Code (CPC).”

Further, she noted that the accused person being a licensed firearms holder, has a duty of care to the public in the way he uses his firearm.

“The accused person being a trained user of firearms, ought to have contemplated that  the act of shooting in public could have caused injury to the public,” the magistrate noted.

However, Mboya was also convicted of wounding a security guard at the scene of the crime.  The offence was committed on December 1, 2016. 

“I find that the prosecution has not proved the charge of attempted murder on the security guard.

I however find the accused person guilty of a lesser charge of wounding contrary to Section 237(a) of the CPC,” ruled Mutuku.

Following the shooting incident, Osewe was taken to ARA Hospital at Garden City Mall where he was first attended to before he was transferred to Aga khan hospital.

The Director of Public Prosecutions through State Counsel Anderson Gikunda asked the court to treat Mboya as a first offender.

In his mitigation, Mboya through lawyer Benjamin Makokha pleaded for a non-custodial sentence saying that failing to do so would  be condemning his dependants.

“My client is a polygamous family man with several children  who depend on him for survival,” Makokha said.

Earlier, Mutuku had dismissed the application by Mboya seeking to defer the judgement as he wanted to adduce more evidence in the case. 

He requested to defer the judgement saying people known to the accused were ready to give more evidence. He said that he intended to call Osewe’s wife among their witnesses in the case.

But Mutuku dismissed the request to reopen the case saying it lacked merit.

Mboya is accused of trying to kill Osewe and another man, Wilfred Ombunya Tembula.  He pleaded not guilty to a charge of attempted murder in 2017 and has been  out on a Sh 300,000 bail.

In December 2016, Mboya testified that he was in Garden Estate when Osewe came shouting that he was going to kill him.

Mboya has been remanded at Industrial Area Remand prison until October 4 as court waits for a pre-sentencing report.

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