Nine General Service Unit officers (GSU) have moved to court seeking orders to stop the Director of Public Prosecution and Independent Police Oversight Authority (IPOA) from charging them in relation to the death of four civilians at Masimba in June 2022.
Through lawyer Danstan Omari the officers also want the High Court to prohibit the DPP and IPOA from interfering directly and or indirectly with the discharge of their mandate of the or further charges in relation to the Masimba incident.
The applicants are Cornelio Tokoyi, John Njoroge, Zakayo Kurere, Hosea Chikara, Mohamed Walla, Zakayo Kurere, Kipkorir Sigisin, Adan Nunow and Wambua Kilonzo
In addition, the GSU officers want a declaration that they did not have any involvement and/or premeditation of the incident that happened on June 2, 2022.
According to court documents, on 4th November 2022, IPOA issued a signal to S.P (Superintendent) Omusungu, S.O.A (Staff Officer Administration) GSU headquarters to take the officers to their office.
“Upon the officers’ arrival, they were informed to head to Kibra Police station for their fingerprints to be taken,” Omari states.
The officers claim they were never informed of the reason as to why their fingerprints were to be processed and at around midday, they were placed in the cell without any reason made known to them. They were booked under OB number 20/04/11 2022 at 1239hrs.
“At about 6.00pm, the applicants were issued a form under section 52(1) of the National Police Service Act; which form was the conditional precedent to their release. The said form required the applicants to attend IPOA Headquarters on 9/11/2022 at 0900hrs for investigation of alleged murder/ grievous harm charges,” the officers claim.
The Journey
It is alleged that on the 1st June 2022, the officers had the duty of escorting money from Mombasa to Delarue, Nairobi which operation was headed by Tokoyi.
Under the command of the Tokoyi the armed officers had the task to guard the money throughout the night and were to remain on duty until the money was handed over to Delarue company.
The cargo was safely transported to Nairobi and the team slept at GSU headquarters. On the 2nd June 2022 at around 10.00 hrs, Tokoyi briefed his officers on being alert and being sensitive about their safety and travels on the way back to Mombasa as was his prerogative and duty as commander of that syndicate.
The GSU officers went well and upon reaching Masimba Center around 1300 hrs they found a huge traffic jam that appeared not to have moved for quite some time.
“The 1st Applicant (Tokoyi) advised the drivers to put on a siren which is normally used for emergencies,” says Tokoyi in his affidavit.
According to the team leader, it was only humane to his team that the siren be put on so that the way may be cleared since the officers had been working all day and night on 1st June 2022 and had not rested nor had any sleep.
With the siren, they navigated the traffic well. However, after about 500 metres into the traffic, they were unable to proceed since the road was barricaded with stones, logs and bon-fires were ablaze.
Riots
Tokoyo avers that there were over 1,500 persons as rioters who appeared quite agitated and began to surround them and began throwing stones at them.
“The mob comprised members of the Maasai community mainly farmers and livestock keepers who had staged a demonstration on the Mombasa highway protesting violently while heavily armed because elephants were destroying their farming and livestock,” he adds.
It is alleged that on the material day, demonstrations were triggered by the death of a primary school teacher who was trampled to death by an elephant in the previous week.
Tokoyi swears that the angry mob started attacking them, injuring several of his officers. This led to them firing several rounds of ammunition in the air to disperse the crowd.
He further states that when the situation started being calmer he called for cease fire and the applicants retreated to a safer place near the cars in the traffic jam at the very tail end.
The team leader confirmed that most of his officers had suffered injuries from the lethal weapons and himself had also sustained head injuries in the head, neck and hip.
“It was imperative that they sought medical attention immediately since it was a war with a community that is known to carry weapons such as bows, arrows, pangas which may very well be laced,” he claims.
At the tail end of the traffic, the officers found general duties officers and administration police officers who told them that they had attempted to confront the mob earlier before the applicants arrival and the mob was uncooperative and unmanageable.
After calm was restored, the officers proceeded to Mombasa where they sought medical attention and recorded the incident in the occurrence book. They also reported to their superior.
“It is later in the news that there was a report that GSU officers had killed four persons,” Tokoyi notes.
The blame
The nine argue that no ballistics were ever done to ascertain whether it was the applicants who had caused the unprecedented loss of lives or whether is was the AP or GD officers since they had a confrontation with the rioters before their arrival or whether it was the rioters among themselves who caused grievous harm amongst themselves.
In addition the claim that all the vehicles and civilians who were harmed during the riots made their respective reports in OB numbers as is required by the law.
“Owing to the fact that the applicants were ordinarily discharging their mandated role, they seek the intervention of this court in a bid to be protected by this honourable court being the custodian of the law,” states the applicants.
They claim that it is very probable that the arrest and possible preference of charges of the active officers serving under the National Police Service, discharging their mandate as prescribed in the law, is inspired by a political agenda and vendetta as the President made remarks on Mashujaa Day with regards to extrajudicial killings.
