The Court of Appeal has freed six people jailed for murdering former Juja MP George Thuo on Sh1 million bond each, pending the determination of their appeals against conviction and a 15-year jail term.
In a decision delivered in Nairobi, appellate judges Jamila Mohammed, Francis Tuiyott and Pauline Nyamweya granted bail to Thika-based Porkies Club owner Paul Wainaina Boiyo alias Sheki and his five employees Christopher Lumbazio Andika alias Lumba, Samuel Kuria Ngugi alias Visi, Esther Ndinda Mulinge, Ruth Watahi Irungu alias Atlanta and Andrew Karanja Wainaina.
” This Court is inclined to allow the applications as prayed. Each of the six applicants will now be released on a bond of Sh1 million with one surety of a similar amount, pending the hearing and determination of their appeals against both conviction and sentence,” Judges Jamila,Tuiyott, Nyamweya ordered.
The six were convicted by High Court Judge Roselyne Korir on April 19, 2024 for the murder of Thuo, who collapsed after allegedly consuming a poisoned drink at Porkies Club in Thika in 2013.
They were later sentenced to 15 years in prison on June 19, 2024.
Aggrieved by their conviction and 15-year jail terms, the six moved to the Court of Appeal through separate applications, which were later consolidated seeking to be admitted to bail pending the hearing of their appeals.
Their lawyers also pointed to favourable pre-sentence probation reports and stressed that all the accused had faithfully complied with bond terms and attended court throughout the nearly 10-year trial at the High Court.
They contended that the High Court erred in law and fact by relying entirely on circumstantial evidence and mere suspicion to find them guilty of murdering former Juja MP Thuo.
In their filings, they argued that the trial judge built the conviction on four different and conflicting theories on how the alleged poisoning occurred, without conclusively proving any of them.
They further complained that the prosecution had failed to prove the key ingredients of murder, including common intention and a clear link between any of them and the alleged poisoning.
“We were convicted on the basis of conjecture rather than evidence,” they argued, insisting that the judgment of the superior court was unsafe
The Office of the Director of Public Prosecutions did not oppose the bail applications, a factor the court treated as significant.
Senior Assistant DPP Mr Omondi conceded that the appeals raise very valid, weighty and tangible matters of law regarding a conviction based entirely on circumstantial evidence and that there was an overwhelming likelihood of success in the appeals.
The Court of Appeal held that the prosecution’s concession, coupled with the legal issues raised and the risk that the applicants could serve a substantial part of their 15-year terms before their appeals are heard, amounted to exceptional circumstances.
The three judges reiterated that bail after conviction is not automatic and is only granted in rare and exceptional circumstances, since convicts no longer enjoy the presumption of innocence.
But in its decision the Court of Appeal found that their convictions were based on shaky ground.
The judges said the case rested entirely on circumstantial evidence and that the trial court had relied on multiple, conflicting theories on how the alleged poisoning occurred, without firmly establishing any of them.
“Without attempting to determine the appeals, we think that there is merit in the arguments by the applicants that they were convicted on four different and distinct sets of facts that were purely circumstantial,” the bench observed.
They highlighted contradictions in the trial court’s findings, pointing out that while there was evidence that four of the applicants had shared a table with Thuo on the fateful night, there was no direct proof that any of them poisoned his drink.
“While there was evidence that four of the applicants shared a table with the deceased on the fateful night, there was no evidence that the four laced the deceased’s drink with poison,” the Judges stated.
The judges further note that this version was not consistent with the trial court’s own conclusion that a fifth person, a waitress also also had access to Thuo’s drink by virtue of serving him, and yet another scenario in which one of the accused allegedly bought beer at the counter and handed it directly to the deceased.
“In addition, again as conceded by counsel for the State, there was no evidence that the applicants hatched a common intention, before or during the commission of the alleged crime, to kill the deceased,” the three judge bench added.
Against that backdrop, the Court of Appeal found that the conviction could not, at this stage, be said to rest on a firm evidentiary foundation, and that the issues raised on appeal were weighty enough to justify releasing the six on bond as they challenge both the findings of guilt and the 15-year sentences imposed on them.
