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Convict's appeals for freedom fail despite witness' new tale

Star witness lied but that can't help death row prisoner. [Photo: Courtesy]

A man was handed the death sentence on account of false testimony by a star witness in a robbery with violence case, it has emerged.

Dominic Kihuri, a taxi driver, has confessed that his testimony that Peter Manthi was one of the two people who robbed him on April 9, 2004, as he ferried them was nothing but a lie.

However, Kihuri says he did not do it willingly. In court documents exclusively obtained by The Standard, he says a police officer compelled him to implicate Manthi, who has been at Kamiti Maximum Security Prison for the last 14 years.

He claimed an officer, in the rank of Chief Inspector of Police, and who he identified only as Mutua, threatened to charge him if he did not implicate the suspect.

Judicial process

Yet his admission has come too late as it cannot reverse the sentence apparently because the case has already gone through the judicial process and a decision made.

Manthi has appealed his sentence twice, before the High Court and the Court of Appeal, and lost.

Manthi was arrested in 2004, tried and sentenced to hang by the magistrate’s court, a conviction upheld twice by superior courts. 

It was last year that Kihuri claimed he was forced to implicate Manthi.

In a testimony that exposed the soft underbelly of Kenya’s justice system, Kihuri says Mutua forced him to tell court that Manthi was a criminal. “I feel guilty for occasioning the conviction and sentencing of the applicant. The guilt shall only go upon seeing the applicant walk to his freedom,” Kihuri stated in an affidavit dated June 20, last year.

Kihuri recalled that days after two men who had hired him robbed him of Sh700 and the car, his employer, a Mr Joseph Kimashia, told him the vehicle had been recovered.

Identify vehicle

Kimashia later asked him to report at Gigiri Police Station to identify the vehicle.

“Upon arrival at the police station, Manthi was brought and I was told to identify him as one of my assailants. When I stated I could not recall, the police arrested me and put me in custody. I would then be transferred to Muthaiga Police Station,” the affidavit reads.

Kihuri said he was in custody for 29 days. He was freed after accepting to testify against Manthi.

“If the CIP Mutua had not threatened me with prosecution, I could not have claimed I could identify him as one of those who robbed me. Save for the Sh700, the mobile phone and the shirt they tore, I did not suffer any other loss. The vehicle was also returned to its owner,” Kihuri said.

However, the development was not of much help to the prisoner. This was after his fresh attempt for a review of his sentence last month, before High Court judge John Mativo, also flopped.

Manthi had also sued the Attorney General and the Director of Public Prosecutions over the matter. 

The DPP opposed the bid for a retrial. However, the AG submitted that the evidence contained in the affidavit met the threshold for new evidence and urged the court to exercise its discretion and order a retrial.

But Justice Mativo dismissed the fresh suit, saying he did not have the chance to have Kihuri examined to ascertain truthfulness of his affidavit.

“Only two scenarios can be true if at all the affidavit sworn by the said Dominic Kihuri is genuine. Either, he lied in the lower court or he was compelled to lie; or he is lying to this court. Years later, he wants the court to believe statements he recorded at the police station and the detailed evidence he gave in court was not voluntary?” Mativo asked.

Manthi’s trouble started on April 14, 2004, when he was arrested at Kisii General Hospital. The police are said to have arrested him over a car he had allegedly parked in the hospital’s compound.

Court records show Manthi was in custody for 21 days. The police could not explain why they took long to charge him.

But the confession came in too late as Manthi had appealed the decision made before Hellen Wasilwa (now a Labour Court judge) twice before the High Court, and the Appeal Court and lost.

Ordered retrial

After the conviction, Manthi appeared before High Court judge Jessie Lesiit, who ordered a retrial before a resident magistrate only named Maundu. 

When he was put to his defence, Manthi said that he was a hawker in Kisii Town. He said he only went to the hospital, on April 14, 2004, because he was unwell.

At the time of the robbery, Kihuri was employed by Elit Car Hire Company. He said at 4pm he was at Upper Hill Springs restaurant when two men approached him and requested that he ferries them to Ngong. At Ngong, the men refused to alight, attacked him and snatched the car.

But his testimony in 2006 does not add up. He said one of the men had a pistol, and in the same testimony indicated that he did not see any weapon.

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