Waweru v Republic [1982] KECA 20 (KLR)

The court found no justification for the accomplice treatment because the two policemen were ordered to the scene by the appellant himself, used no violence during the arrests, and the appellant himself deposed that no violence was used at that time. Sgt Ole Musia in fact tried to prevent the appellant from hitting the deceased and other suspects with the rifle butt. The violence causing death was inflicted by the appellant alone at the time of the arrest, so the assisting officers were not accomplices.

The appellant argued that night-time conditions and confusion rendered identification unsafe, and that the failure to call the vital witness Kasina, a serving soldier, prejudiced him. The court evaluated the evidence afresh as a first appellate court and was satisfied of proper identification, particularly since two of the identifying witnesses were members of the appellant's own police party. It also found the prosecution had tried repeatedly and unsuccessfully to secure Kasina's attendance.

The deceased had offered no violence or provocation; at most he may have sat down to object to being arrested after asking why he was being arrested and getting no answer. The appellant struck him with a rifle butt, knocked him down, trampled on him while wearing boots, and he was then left in a cell without water and died of massive internal haemorrhage from fractured ribs and stomach injury. The court held this grossly excessive force justified the manslaughter conviction and affirmed the eleven-month sentence.