Henry Onyango Agunda, then a clerk of the Kenya Ports Authority (KPA), was dragged out of his house in Changamwe on suspicion of murdering his wife Margaret Akinyi and daughter Rhoda Nyanje on December 5, 2010.
He was detained at the local police station for about 10 days after which he was charged before Justice Maureen Odero who remanded him at Shimo la Tewa Prison to await his trial.
But when he appeared in court in March 2011 for the mention of his double murder case, he was surprised to see his wife and daughter in the public gallery.
The wife the KPA clerk is alleged to have killed raised her hand in court to informthe judge that there was a bad mistake but she did not catch the eye of Justice Odero.
Instead, Agunda was sent back to remand where he remained until April 21, 2011 when the state realised the police had duped the prosecution and terminated the murder charges.
Now the stonemason has sued the state demanding Sh15 million as compensation for wrongful confinement.
The state is yet to reply to an affidavit seeking declaration that he was wrongfully brought before the court and his reputation ruined due to a meticulous conspiracy hatched allegedly by his mother in law Mary Nyanguka and police in Changamwe.
Although Agunda had been set free, he bore injuries he claims to have sustained during a violent arrest and incarceration.
In his affidavit, Agunda, who hails from Bar Sauri in Yala township of Siaya County, wants the state to compensate him for illegal confinement.
Terminating the charge against him, the Assistant Director of Public Prosecution Justus Ondari briefly said the case €œshall not continue€.
Significantly Agunda left prison on April 21, 2011 although the termination of charges of nolle prosequi is dated February 25 of the same year and in between these dates the former suspect came for a mention of his wrong charge.
In a sworn affidavit, Agunda says that on December 5, 2010 his mother-in-law Mrs Mary Nyanguka made a report at Changamwe police station in Mombasa that he had killed his wife and daughter.
He says that based on the allegation made by his mother in law he was arrested on the same day and detained for two weeks before being charged in the High court with the murder.
€œI was arraigned in the court on December 15, 2010 vide case number 35/2010 on claims I had murdered my wife Margaret Akinyi and daughter Rhoda Nyanje contrary to section 203 as read with section 204 of penal code,€ he says in theaffidavit.
He says that on March 25, 2011, he pleaded not guilty to the offence before Justice Maureen Odero who remanded him at Shimo La Tewa prison.
€œI spent several months in the prison while waiting for my trial and in March 2011 when the matter came up I saw my wife raising her finger from the public gallery which never attracted the attention of the court.
€œDespite the police having knowledge that my wife who I was accused of having murdered was alive there never made an attempt to have me released making me continue languishing in the prison.€
He recalls that the state entered a nolle prosequi on April 21, 2011 the day the court had set for his trial of the murder.
He says his reputation was injured and now wants the state to compensate him over the failure of the police to conduct thorough investigations before his arrest.
He faults the police for having failed to withdraw the case against him immediately after they got information that the alleged victims were alive.
He accuses the police of failing to de-link him from the murder despite having the information that made him suffer in the prison.
The mason wants the court to declare his arrest, detention and prosecution was a gross violation of his fundamental rights and order compensation.
In a recent interview, Agunda says that before filing suit he wrote several demand letters to the Attorney General over malicious and punitive prosecution which were ignored.
€œUp to now the state has not filed defence and that is why we cannot fix a hearing date for the case,€ said his lawyer yesterday in Mombasa.
- The Standard
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