The attempted murder case facing Embakasi East MP Paul Ongili alias Babu Owino will proceed after a magistrate court declined a request by the victim to withdraw the matter.
The victim, Felix Orinda popularly known as DJ Evolve, wanted to withdraw the criminal case on grounds he and the lawmaker were good friends even before the January 2020 shooting incident that resulted to the court trial.
Through a letter dated September 21, 2020 addressed to the Director of Public Prosecutions (DPP) and the Court’s Executive Officer, the victim and his family indicated that the court case was affecting his healing process due to a divided attention.
But the court presided by senior principal magistrate Benard Ochoi declined the request saying the application did not meet the threshold set to withdraw a criminal case.
Further, that the unconditional withdrawal of the case was not appropriate in the circumstances because the parties had not disclosed what the MP was offering the victim or his family.
While stating that the window of engagements (out-of-court settlement) between the parties was still open, the magistrate said they must come out openly and inform court the details.
When the issue of withdrawing came up in court in September last year, prosecutors Jacinta Nyamosi and Joseph Riungu asked to be granted more time to consider nature of the letter written by the victim who is the principal witness of the criminal case.
The MP is accused of attempting to murder the DJ by shooting him on the neck at B Club located along Galana Road in Nairobi on January 17, 2020. He is facing a second charge of behaving disorderly while carrying a firearm by firing one bullet with intent to shoot the DJ.
The prosecutors told court that they needed time to find out the motivation behind the victim’s intention and whether the path of Alternative Dispute Resolution (ADR) was appropriate considering the nature of the offence.
The letter on intention to withdraw was accompanied by an instruction note bearing a thump print against the name Felix Orinda. It also had an affidavit sworn by Mr Orinda by affixing his thumbprint.
The letter was signed by the victim’s parents, Johannes Orongo Odhiambo and Mary Adhiambo Hongo.
According to the letter, the family had been on an intense deliberation on a need to allow the complainant to concentrate on his treatment rather than the pending criminal case against the MP. They said the case was affecting his healing process due to the divided attention.
It stated that the family had repeatedly been in communication with the complainant, who had ‘categorically expressed his very considered position that he did not want the case to continue’.
The court was brought to the attention of the letter by the victim and family’s lawyers, who told the magistrate that the wishes of the victim should be respected.
They added that settlement out of court is allowed in law for any offence and being a public interest case did not preclude the matter from being withdrawable for an out-of-court settlement as all cases are equal before law.
However, the prosecutors said they wished not to respond to the victim’s intention immediately since they needed to have a better understanding on what informed his decision considering it was a case of public interest.
The prosecutors pointed to court that they were aware the victim was not physically and mentally capable at the moment and therefore they needed to get the medical assessment report to even assess his ability to give instructions.
Magistrate Ochoi, in his ruling said the law empowers the DPP to discontinue any criminal proceedings at any stage before judgment is given.
However, Article 157 of the constitution enjoins the DPP to exercise the powers with due regard to public interest, interest of administration of justice and the need to prevent and avoid abuse of office of the legal process.