Nairobi, September 23

A businessman charged with attempting to kill a city hotelier, William Osewe, over a woman has lodged a fresh application seeking to be allowed to tender further evidence in his defence.

Tom Oywa Mboya, who had been put in his defence, was scheduled to be convicted and sentenced on September 23 when his lawyer Benjamin Makokha asked the court to re-open the case to enable it do justice by allowing him to call four other defence witnesses.

"The fact that we are seeking to adduce new evidence does not mean we are afraid of taking the judgment, we urge the court to allow our application," Makokha said.

While seeking to re-open the case, the accused said that the new evidence will shed more light on the true events of what happened during the shooting incident.

"By denying the accused person to adduce evidence that has come forth is denying him an opportunity for a fair trial."

However, the prosecution through Anderson Gikunda opposed the move to reopen the case saying that once a case is closed, it cannot be reopened.

"There must be an end to the trial. The new application by the accused is meant to delay justice and fill gaps in their defence," Gikunda said.

The prosecutor further opposed the application saying the same is defective and not based in any law.

"This is a complete abuse of the justice system where extra witnesses emerge last minute when the delivery of judgment is being made," Gikunda argued.

While defending himself, Mboya attempted to exonerate self from blame saying that he shot in the air in order to defend himself since the complaint was always armed.

In his submissions pressing for acquittal, the accused through his lawyers informed trial magistrate, Martha Mutuku, that he be cleared of the offence.

"The complainant had threatened to kill the accused. We urge you to consider that the prolonged provocation of Osewe to Tom was too much. He alleged that Tom was so close to his wife," said Prof Tom Ojienda.

"Mboya was threatened and he acted because of the threat by Osewe, if they have any settlement, it should be done in civil court," he added.

Gikunda asked the court to find the accused guilty of attempted murder saying it is by luck that Osewe is alive today.

"The intent was to kill the complainant. The accused knew that Osewe was dead when he went to report to the police station," said Gikunda.

The prosecutor added: "The complainant was not armed. No firearm was produced to prove that Osewe was armed. We plead with the court to find Mboya guilty of the offence."

In 2019, Mboya defended himself saying that Osewe had threatened to chop off his manhood and kill him if he did not stop sleeping with his wife.

Mboya admitted to shooting the restaurateur in self-defence. He told Chief Magistrate Martha Mutuku that he aimed his gun at Osewe’s hands because he wanted to disarm him.

“The complainant, in this case, had previously said that I had slept with his wife and he was going to cut my manhood if I didn't stop. He cocked his gun twice but could not shoot and my aim was to shoot his hands,” Mboya told the court.

Mboya, who was giving his defence testimony, said that Osewe had threatened him even before the incident happened in 2016.

Osewe, the owner of the popular Ranalo or K'osewe Foods along Kimathi Street, Nairobi, was shot on December 1, 2016.

Mboya is accused of trying to kill Osewe and another man, Wilfred Ombunya Tembula. He pleaded not guilty to a charge of attempted murder in 2017 and is out on a Ksh300,000 bail.

In December 2016, Mboya testified that he was in Garden Estate when Osewe came shouting that he was going to kill him.

“He is a loud person and he attracts the public. I tried to walk away from him. We moved to an area near a river as he followed me. I saw Osewe draw his gun, a pistol and cock it twice, so I felt unsafe and decided to draw mine,” he said.

There were people around them who wanted to know why they were fighting.

“If you cock gun twice and try to trigger it and does not shoot, it jams, that's what I was taught by the GSU,” he told the court.

Mboya said he shot once at Osewe's hand and shot again twice in the air.

The ruling on whether to allow a plea to reopen the case will be delivered on Monday, September 27.