The office of the director of public prosecution has filed a notice of appeal to challenge a Mombasa High Court acquittal of Amina Shiraz.
In the notice dated December 11, 2019 the DPP requested for certified copies of the concluded High Court proceedings so as to proceed with the appeal.
Through State Counsel, Alloys Kemo, the DPP filed this notice at a Court of Appeal in Mombasa. The DPP is dissatisfied with the ruling rendered by the Mombasa High Court judge Lady Justice Dora Chepkwony.
”The mater came up before lady Justice Dorah Chepkwony for ruling on December 4, 2019, whereupon the accused was acquitted under Section 306(1) of the Criminal Procedure Code. Kindly supply us with the certified copies of the proceedings and ruling to enable us to file an appeal against the said ruling,” the DPP’s letter read.
According to Section 306(1) of the Criminal Procedure Code when the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.
In her judgement, lady Justice Dora Chepkwony had acquitted Amina Shiraz of the murder of his husband, Jimmy Baburam. The accused had been a suspect in the murder of Baburam while they were on a family vacation in Medina Palms Watamu, Kilifi County on July 26,2015.
The judge averred that the DPP had failed to prove a prima facie case against the accused consequently setting her free.
“None of the evidence given by the 18 prosecution witnesses linked the suspect to the death of her husband Jimmy Baburum,” the judge averred.
The judge stated that the prosecution needed to prove its case beyond reasonable doubt as per the evidence rules concerning criminal law cases.
The accused had been charged with her clandestine lover, Jacob Schmalze, over the murder of Baburam. However, the co-accused fled to the US shortly after getting a tip-off that the DPP had pressed murder charges against him. Consequently a warrant of arrest against him had already been issued.
The judge faulted inconsistent witness statements from two key witnesses stating that the oral statements from these two prosecution witnesses were the only ones with probative evidence to connect the accused with murder. However, this evidence differed from what was in their written statements thus arising doubts on what was the true version of the story.
“Apart from the two witnesses, none of the remaining witnesses gave evidence to point out that the accused caused the death, as some never even visited the scene,” she said.
The judge further noted that there was no evidence in the mobile phone submitted in court to show that the accused had mens rea to commit murder.
Shiraz is also accused of conspiring with Police Officer Abdi Shee to conceal murder evidence of Jimmy Baburam.
In the high court case Mr. Ngao, the Investigating officer had told the court that at around 4 A.M ,Emmanuel Wafula, a security officer who was assigned to guard the villa saw Amina and Jacob drown Jimmy as he tried to fight for his life. Mr Ngao said that the guard informed him that he witnessed the whole drowning ordeal through a hole at the fence. Consequently, the guard had also been threatened by Amina when she realized that he knew .
“Shiraz had invited Jacob at villa and that night they proceeded to have a party together until 4 AM when the security guard heard noises and saw Jimmy struggling in the swimming pool while being droned by Amina and Jacob,” said Ngao.
Ashraf Kassim, the Villa’s manager, also confirmed that Wafula had told him that he had witnessed the attempted murder. Ashram and Wafula had also been bonded in a murder inquest matter in a Malindi law court.
Mr Ngao claimed that having conducting investigations and recording statements he concluded that the businessman’s death was by foul play despite postmortem records showing it was accidental.
The deceased father, David Baburam, a former KDF officer and currently a senior top consultant stationed at African Union Headquarters in Addis Ababa, informed the court that Jimmy was murdered by his wife with the help of her American lover Jacob Schmalze. He had concluded this after Amina first informed him that his son had collapsed and died yet according to the postmortem report tendered by Dr. Peter Ndegwa and witnesses, Jimmy had drowned.
The court was also informed that the late Baburam was aware of the clandestine relationship between his wife and Jacob. He had also warned Jacob to stay away from Amina failure to grave consequences would follow.
The late Baburam left behind Ksh 50 million life policy benefit, businesses in Dubai and Nairobi and a vast estate worth over Ksh 500 million.
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