The Office of the Director of Public Prosecutions applied on Tuesday morning to withdraw its case against a man charged with causing the death of two Peponi School students, even as the case kept circling allegations of a cover-up and a prominent businessman’s family sat at the center of the wreckage.
The Chief Magistrate’s Court in Kibera heard the unusual objection as the crash case dragged on, with the accused person saying he had a ready confession while the prosecution said it wanted to step back so investigators could sort out who was actually behind the wheel. That’s the kind of procedural mess that leaves ordinary people waiting while institutions shuffle papers and protect their own version of order.
Who Pays for the Confusion
The two Peponi School students who died were both foreign nationals. They were at the tail end of their high school studies when they attended a leavers’ party at Muthaiga Country Club on April 24. They were among five other learners travelling in a car that crashed along Ngong Road in the wee hours of the following morning. One other learner, also a foreigner, sustained serious injuries that left him in a coma.
The crash didn’t just injure bodies. It triggered a push and pull over who was in the driver’s seat, and the people closest to the wreck have offered competing stories that point in different directions. The vehicle’s owner, a prominent Kenyan businessman, told police that his nephew was driving at the time of the crash and that his son and four other students were passengers. The businessman’s son, who sustained minor injuries, also told police that his cousin was driving. The businessman’s nephew also told police that he was driving.
Police charged the businessman’s nephew with causing death by dangerous driving on May 28. But the family of the student who went into a coma says there is a cover-up attempt by officers at the traffic department of Karen police station, as the prominent businessman’s underage son was driving the car and was under the influence of alcohol at the time.
What the Family Asked For
The family, through Murgor & Murgor Advocates, wrote to the ODPP three times between June and August, questioning how someone was being presented for prosecution before investigations to establish the driver’s identity were completed. They demanded thorough investigations into the incident, including CCTV footage from the crash scene, phone location data of all parties involved and statement recordings from various witnesses.
That demand matters because the crash scene itself offered no easy answer. When police arrived, there was nobody in the driver’s seat of the car. Before the crash, two other Peponi School students had been dropped at their homes in Muthaiga and Kitisuru, and were earmarked as potential witnesses in identifying the actual driver. One of the students who was dropped home safely also told police that the prominent businessman’s nephew was the one driving.
On Tuesday, prosecutor Michael Mutune told the magistrate that the ODPP’s move to withdraw was to facilitate thorough investigations to uncover who was driving the Isuzu D-Max pick-up truck at the time of the crash. The Isuzu D-Max, imported in 2018, is registered to a company which is in turn owned by a prominent businessman.
What the Court Is Being Asked to Believe
Lawyer Marete for the accused person objected to the ODPP’s withdrawal application, arguing that his client wanted to plead guilty to all charges. Mr Marete said he had spent the whole weekend counselling his client. The accused person had pleaded not guilty on May 28.
Mr Marete told the court that after the weekend counselling, his client was now ready to plead guilty to all charges and accept any conviction and sentence imposed by the magistrate. That leaves the court with a strange little theater: one arm of the state wants out so it can investigate, while the defense says its client is ready to take the fall.
Magistrate Stella Atambo will rule on the DPP’s application to withdraw on August 27.
DPP Renson Ingonga has, meanwhile, on August 5, ordered the Directorate of Criminal Investigations to constitute a team that will take over the probe from Karen police station. His office has directed that one of the lines of investigation is conspiracy to defeat justice, which could entangle the businessman, his son and his nephew.
The police station’s traffic department had already tried to force its way into the school. Five days after the crash, Karen police station’s traffic department filed an application seeking to compel Peponi School to grant officers access to the institution to record statements from witnesses. The school had earlier said it could only allow officers access to the witnesses after receiving a court order and parental consent. By June 5, when the court issued orders allowing officers into the school, the A-Level class had finished final exams, with learners long released to their parents.
Peponi School’s headmaster Mark Durston said in an official communication to learners and staff on May 18 that the businessman’s son was driving the car. "In the early hours of the following morning, a group of pupils left the Club in a private vehicle driven by one of the pupils, [name withheld for legal reasons]. There were seven pupils in total, with the intention that passengers would be dropped at their respective homes," Mr Durston’s communication read in part.
The father of the student in a coma told police that the prominent businessman and his wife were also at Karen Hospital when he arrived. He said that was when his son was transferred to MP Shah, the businessman followed them before handing over a CT scan conducted at Karen Hospital.
The businessman’s nephew told police that his cousin only drove the vehicle from Muthaiga Country Club to a block of apartments a few metres away. In the accident, the nephew claimed to have lost control of the car when swerving to avoid hitting a motorcycle being ridden on the wrong side of the road. The nephew claimed that it was raining and that the road was wet.
A police constable who arrived at the scene said in his statement that it had rained earlier in the day and the road was completely dry. "The driver of the said motor vehicle [registration number withheld] must have been at a very high speed bearing in mind that the road was dry. It (the accident) occurred at a right slight bend…," the police officer’s statement reads in part.
The businessman’s nephew claimed that a good Samaritan helped him break the windscreen and exit the vehicle, and that he froze upon seeing the three learners who had been thrown out as the Isuzu D-Max rolled. The nephew added that another motorist offered to drive him to the city centre, warning that he may be attacked for causing the accident. He said he borrowed somebody’s phone in the city centre to call his uncle before going home.