The Director of Public Prosecutions has asked the High Court to set aside the acquittal of Embakasi MP Babu Owino in a case in which he had been charged with misusing his firearm in the shooting of DJ Evolve.
In its appeal before the High Court, the DPP says the trial court made a mistake in acquitting him without considering the weight of evidence and testimony adduced by their witnesses.
“The trial Magistrate made a mistake in acquitting Babu by failing to properly consider the credible and convincing evidence adduced by the prosecution witnesses,” DPP said.
The DPP further says the court made a wrong finding when it ruled that the ballistic expert report was inconclusive.
“The trial Magistrate Bernard Ochoi made a mistake in law and fact by finding that there was no evidence of the victim having sustained gunshot wounds and that Babu did not intend to shoot the victim,” DPP said in its appeal.
On August 29, Magistrate Bernard Ochoi acquitted Babu saying said the prosecution did a shoddy job as no evidence was produced to prove the charges levelled against Babu.
After analyzing the evidence produced in court, Ochoi identified two issues for determination in the case.
One was whether Babu was drunk and behaved in a disorderly manner on the night DJ Evolve was allegedly shot.
Second was whether DJ Evolve sustained a gunshot and if it was from Babu, was there intent to do so?
The court said there is no doubt the environment in which the offence took place is a popular joint for food and drinks.
It relied on CCTV footage which showed people eating and drinking.
Babu had denied taking alcohol that night. However, the court was not convinced by his testimony because there were prosecution witnesses who testified to seeing him taking alcohol.
However, there was no evidence produced in court by the investigating team with respect to Babu's sobriety.
"Samples taken don't show that the investigating officer desired to know the alcoholic content in babus blood."
In the absence of the blood tests and results, the court said the aspect of drunkenness could not be established.
The only evidence touching on Babu's conduct that evening was from the investigator who was not at the scene.
The court said the prosecution did a 'shoddy job' as no medical evidence was tendered to show what injuries DJ Evolve sustained.
Ochoi said that the Investigating officer appeared to have been relying on CCTV footage.
"In my view, the footage can't be substituted for medical evidence. A medical report or p3 form should have been availed to confirm the victim had suffered a gunshot wound," the Magistrate said.