The caution was made by Senior State Counsel Mrs. Christine Gakubu at the opening of the Appeal hearing before Machakos Judge Mrs. Lilian Mutende. Gakubu said the State believed that Fr Makewa was lawfully found culpable in the attempted murder of his fellow priest Fr Fidellis Nzuki
Fr Makewa, who is out on bond listened as Mrs. Gakubu gave a notice of Advancement of Sentence from the current seven years slapped by Tawa Senior Principal Magistrate Mr Waititu Gichimu.
Justice Mutende asked Fr Makewa whether he understood the implications of the notice and the priest confirmed that he understood that the State wanted the sentence escalated because it felt that the trial magistrate was lenient when passing sentence.
He is represented by lawyers J Mwagambo and Mr Namisi. Namisi however protested that the notice explained to his client was mere intimidation and threats and that they were ready to prosecute the appeal.
The defense based its case on the fact that both Makewa and his victim were friends and that if Makewa indeed wanted to kill Fr Nzuki, he would not have left him alive as he(Makewa) was a trained marksman. or even have a new trial after a magistrate abandoned the case half way. Earlier evidence by Makewa in court indicated that he was taken for shooting lessons by non-other than the late Police Commissioner Mr Philip Kilonzo. The lawyers are also taking issue with the transfer of the case from Makueni Court and alleged that they were never given an opportunity to recall some witnesses
Mr. Gichimu found Makewa to have deliberately shot Fr Nzuki on the night of March 21 2010 at the Wote Catholic Parish, where Fr Nzuki was visiting on the fateful night. The magistrate upheld evidence adduced by 15 prosecution witnesses who included three priests and three Sisters. He said evidence available showed it is Makewa who shot Fr Nzuki and that he showed intent to kill by shooting him more than once.
In a memorandum of appeal filed Makewa states 21 grounds in a petition that may see his term either reduced, upheld, quashed or escalated.
Fr Makewa is out on bond pending appeal. The priest faces four possible outcomes from his appeal. First, the judges may find fault in the process that led to his conviction and set him free on a technicality. Second, the judge may find that the trial magistrate may have been harsh to Fr Makewa by handing him a seven year jail term given the circumstances surrounding the case and reduce the term.
Third, the judge may simply uphold the sentence and send Makewa to jail on the same terms. Fourth, and very crucial, the High Court may find that the trial magistrate may have been too soft on Fr Makewa by handing him a seven year jail term, while he ought to have been jailed for life, given the circumstances in the case.
Makewa appeals against the judgment and sentence of Mr Gichimu on the following grounds: That the Learned Trial Magistrate failed to appreciate the elements of the charge facing the Applicant and therefore reached a bad and unreasoned decision. He claims Gichimu misdirected himself on several material facts which led him to arrive at the wrong decision.
“The Learned Magistrate’s decision was wholly based on speculation and in total disregard of the facts that were presented to him and erred in his valuation of the probative value of the evidence before him by giving undue weight to some facts which were adequately traversed by Learned counsel for the Applicant while ignoring other important and potent facts which were not traversed at all and which ought to have exonerated the Applicant from the said charge”, he says.
Fr Makewa alleges that the judgment was contrary to the weight of the evidence before the Learned Magistrate and that the learned Trial Magistrate erred in law by lending credence and convicting the accused person solely on the evidence of a single witness.
He says the Magistrate erred both in law an in fact by making the following findings:
A. THAT the loud noises which were confirmed to have been heard by four of the prosecution witnesses outside were in fact caused rain.
B. THAT there were no robbers in the compound.
C. THAT the accused person “had the guts to tell the complainant to die” despite the said testimony not being corroborated.
D. THAT the accused person concocted a plan to kill the complainant despite not having any evidence in support of this.
E. THAT the accused person shot the complainant twice.
F. THAT NO members of the public went to the scene before the police arrived.
G. THAT the officers thoroughly searched the compound.
H. THAT the accused person let the complainant bleeding and unattended to on the floor for twenty minutes despite evidence to the contrary showing that the accused was active in providing aid to the Complainant.
I. THAT motive in the instant case was immaterial.
J. Making an unsupported and
uncorroborated finding that all the prosecution witnesses had no reason to lie against the accused person since they were his friends.
K. THAT there were no holes in the walls
despite the prosecution’s own evidence pointing to the contrary.
L. THAT there were no footsteps in the compound despite there having been rain and a multitude of person’s having been on the compound.
M. THAT if the windows were hit by bullets there would be clean holes and not necessarily shuttering.
N. Totally ignoring the evidence of the Sisters
