- Mr. Alutaalia Aurelio is a very successful businessman. He buys and sells charcoal in Kajiado County and wields tremendous influence and power over the County Government and the police within the County. He belongs to a category of persons ordinarily referred to as untouchables.
Mr. Aurelio is a registered licensed gun holder who regularly enjoys hunting on his expansive ranch known as The Spree. The Spree has hundreds of thousands of wildlife. Regularly, people from villages neighboring The Spree trespass on it with the intention of poaching some of the animals on the ranch.
On 20th May 2013 at about 1530 hours, while Mr. Aurelio was hunting, he ran into and arrested Ms. Lucy Akhaabi, who had two dead squirrels in her hands. Inside her basket was found a trap and a knife that had blood. Mr. Aurelio was very upset. He confiscated the two dead squirrels and the basket. Mr. Aurelio ordered his employee, one Machozi ya Simba, to lock up Ms. Akhaabi in the pigsty as Mr. Aurelio contemplated available options. At about 1900 hours, Mr. Aurelio and Machozi ya Simba beat up Ms. Akhaabi ‘to teach her a lesson and serve as an example to like intentioned persons.’ The beating was so intense that Ms. Akhaabi fainted.
She regained her senses three hours later and found herself under a tree by the roadside. A passerby placed her, while in pain, on a donkey-drawn cart and took her to Mowlem District Hospital. Upon examination, she was diagnosed to have sustained a lower left rib fracture and soft tissue injuries to the left hand and leg. The injuries were believed to have been inflicted by a blunt object. She was put on medication at the hospital’s High Dependency Unit.
On 18th June 2013, she was discharged from the hospital. On 19th June 2013 Ms. Akhaabi made a report to Rungali Police station in Kanjiando County. Her complaint was allocated Occurrence Book Number 75/19/06/2013. She was given a P3 form which was duly filled by the Government Medical Doctor. Diagnosis recorded by the Doctor was described as aggravated assault. An X-Ray showed that indeed she had a rib fracture.
Since making the report, Ms. Akhaabi has made numerous follow-up visits to the police station and held meetings with the Officer Commanding Station, Chief Inspector Wambui Maingi, and the investigating officer Constable Collins Mchokozi but no action has been taken. The last such meeting was held on 19th June 2014. Shortly before the last meeting with the police, Ms. Akhaabi had made three reports, on 8th March 2014, 12th April 2014, and 28th April 2014 to the office of the Director of Public Prosecutions. On the said occasions, she met Principal State Counsel Mutheu Mutwii who told her that prosecuting Aurelio was a ‘politically explosive and expensive misadventure’. Ms. Mutwii suggested to Ms. Akhaabi that the matter should be settled ‘amicably.
Ms.. Akhaabi is intent on commencing criminal proceedings against Mr. Aurelio and Mr. Machozi ya Simba. She approaches the firm of Triple P Advocates for necessary action. You are the partner in charge of the Criminal Litigation Department in the said firm of advocates. Draft documents necessary for commencement of a private prosecution.
(15 Marks)ATP 101 Criminal Litigation r 2014-1