Witness Was Paid Sh50,000 to Trail Ong’ondo Were Before Murder, Court Told

A protected prosecution witness in the high-profile murder trial of former Kasipul MP Charles Ong'ondo Were has testified to being paid KSh 50,000 to trail the legislator's vehicle on the day of his killing. The witness, identified as KAV, claimed to have believed it was a routine transport assignment and only later discovered the connection to the murder. This testimony, presented before Justice Diana Kavedza at the High Court in Kibera, introduces critical elements of potential conspiracy and raises significant questions regarding the nature and admissibility of accomplice evidence under the Kenyan Penal Code and Evidence Act. The development highlights the complexities of establishing criminal intent and joint liability in cases involving multiple actors with varying degrees of knowledge and participation.

The ongoing murder trial of former Kasipul Member of Parliament Charles Ong'ondo Were has taken a compelling turn with the testimony of a protected prosecution witness, who revealed being paid KSh 50,000 to trail the deceased's vehicle prior to his assassination. This revelation, delivered before the High Court in Kibera, underscores the intricate web of events leading to the tragic death of the legislator on April 30, 2025, and brings into sharp focus the legal principles governing criminal liability, particularly in cases involving alleged conspiracy and indirect participation.

The witness, identified by the pseudonym KAV, asserted that they were recruited for what they understood to be a routine transport assignment, only later realizing its sinister connection to the murder. This testimony is pivotal for the prosecution, led by the Director of Public Prosecutions (DPP), as it seeks to establish a meticulously planned act of treachery and conspiracy involving multiple accused persons. The article will delve into the legal ramifications of such evidence within Kenya's criminal justice system, examining how courts approach witness testimony from individuals who may have unwittingly facilitated a crime, and the evidentiary standards required to prove joint liability.

The legal framework governing murder and related offences in Kenya is primarily enshrined in the Penal Code (Cap 63). Section 203 of the Penal Code defines murder as the unlawful act or omission causing the death of another person with malice aforethought. Malice aforethought can be established by proving an intention to cause death or grievous harm, or knowledge that the act would probably cause death or grievous harm. The punishment for murder, as per Section 204, was historically a mandatory death sentence, though a landmark Supreme Court ruling in 2017 declared the mandatory nature unconstitutional, granting judges discretion in sentencing.

Crucially, the concept of joint liability is addressed under Section 21 of the Penal Code, which stipulates that when two or more persons form a common intention to prosecute an unlawful purpose, and an offence is committed in the prosecution of such purpose, each of them is deemed to have committed the offence. Furthermore, Section 224 of the Penal Code specifically criminalizes conspiracy to murder, making it a felony punishable by imprisonment for fourteen years. These provisions are central to the prosecution's case, which alleges a conspiracy and planned execution in the Ong'ondo Were murder.

Regarding evidence, the Evidence Act (Cap 80) governs the admissibility and weight of witness testimony. Section 125 generally provides that all persons are competent to testify unless the court finds them incapable of understanding questions or giving rational answers due to factors like tender years, extreme old age, or disease. Of particular relevance to the current case is Section 141, which states that an accomplice shall be a competent witness against an accused person, and a conviction shall not be illegal merely because it proceeds upon the uncorroborated evidence of an accomplice. This statutory position, however, is often balanced by judicial practice requiring caution.

The testimony of the protected witness, KAV, who admitted to being paid to trail the victim, presents a complex evidentiary scenario for the High Court. While KAV claims ignorance of the ultimate murder plot, their actions of trailing the vehicle for a fee could potentially place them within the ambit of an accomplice or a participant in a broader conspiracy, even if unwittingly. The prosecution's challenge lies in demonstrating the link between KAV's actions and the "common intention" to commit murder, as contemplated by Section 21 of the Penal Code. For KAV to be considered an accomplice, the court would need to assess whether their actions, even if initially perceived as a routine assignment, were in furtherance of an unlawful purpose, and whether the murder was a probable consequence of that purpose.

Under Section 141 of the Evidence Act, an accomplice is a competent witness, and a conviction can legally rest on their uncorroborated testimony. However, Kenyan jurisprudence, drawing from common law principles, mandates that judges issue a caution to themselves (in judge-alone trials) or to a jury (where applicable) regarding the danger of convicting on uncorroborated accomplice evidence. This "rule of practice" acknowledges that an accomplice may have a motive to falsely implicate others to minimize their own culpability or secure leniency. The court will therefore meticulously scrutinize KAV's credibility, the consistency of their account, and any corroborating evidence that supports their testimony, particularly concerning the instructions received and the payment.

The destruction of the SIM card after the incident, as testified by KAV, could be interpreted as an attempt to conceal evidence, further complicating the assessment of KAV's role and knowledge. While KAV maintains they only learned of the murder through news reports, the timing of the payment and the destruction of the SIM card immediately after the event are critical circumstantial details. The court will need to determine whether KAV's participation, even if limited to surveillance, constitutes an act that aided or abetted the commission of the offence, or formed part of a conspiracy to murder under Section 224 of the Penal Code. The prosecution's ability to connect KAV's actions to the broader alleged conspiracy, involving the five charged suspects, will be crucial in establishing the full extent of criminal liability.

Furthermore, the fact that KAV is a protected witness under the Witness Protection Programme adds another layer of consideration. While this status aims to ensure the witness's safety and encourage truthful testimony, it does not absolve the court of its duty to critically evaluate the evidence presented. The defence will undoubtedly challenge KAV's credibility, motives, and the extent of their knowledge, aiming to cast doubt on the reliability of their testimony and its probative value in linking the accused to the murder. The distinction between mere presence or unwitting involvement and active participation or knowledge of a criminal enterprise will be a key battleground in this trial.

The testimony of the protected witness in the Ong'ondo Were murder trial highlights the intricate evidentiary challenges inherent in complex criminal cases, particularly those involving multiple actors and allegations of conspiracy. For legal practitioners, this case serves as a potent reminder of the nuanced application of the Penal Code concerning joint liability and conspiracy, alongside the critical principles of the Evidence Act governing witness testimony. The court's assessment of KAV's credibility, the presence or absence of corroboration, and the determination of KAV's actual knowledge and intent will be pivotal in shaping the outcome of this high-profile trial.

Practitioners must keenly observe how the High Court navigates the delicate balance between the statutory competence of an accomplice witness and the judicial duty to exercise caution when relying on such evidence. The case underscores the importance for both prosecution and defence to meticulously examine the circumstances surrounding a witness's involvement, their motives, and the corroborative strength of their testimony. As the trial progresses, the legal community will be watching closely for how these foundational principles of Kenyan criminal law are applied to unravel the full narrative of the MP's murder and ensure justice is served.