Getting Away With Murder : Cholmondeley Style

Also published recently in Kumekucha: Chris is back

Thomas Cholmondeley, 38 year old divorced father of two, is escorted in the high court by police during his murder trial in Nairobi, September 16, 2008.

The trial of Thomas Patrick Gilbert Cholmondeley for the May 2006 murder of Gilgil stone mason Robert Njoya at the expansive Soysambu ranch in Naivasha is now approaching its end and a verdict is expected by the end of October.

Ranch owner Tom Cholmondeley allegedly shot ‘poacher’ Njoya in the buttocks as he was running away and the rifle shot reportedly caused a massive pelvic wound that resulted to the death of Njoya.

The unenviable task of passing the verdict will fall on the shoulders of 53 year old Honourable Mister Justice Muga Apondi. I have no reason to doubt the abilities of Justice Apondi – who is no stranger to controversial and sensitive judgements, the recent having been ordering a freeze on the bank accounts of runaway Rwandese fugitive Felicien Kabuga – but as a Kenyan, this case arouses my interest just as it would any stuggling-to-survive black landless man.

Granted, the judgement will also be viewed as an acid test to the ability of the Kenyan judiciary to enforce the law equally and fairly, especially when it involves the mighty and powerful of this country.

Tom Cholmondeley is the great grandson of the 3rd Baron Delamere who was among leading British colonial farmers who settled and established large farms across Kenya's white highlands. The Delamere farm is one of the largest and well organised mixed farms and wildlife sanctuary in the Rift Valley province. Tom will become the 6th Baron Delamere upon the demise of his father.

Going by the final submissions of defence lawyer Fred Ojiambo, it appears Tom Cholmondleley is seeking acquittal on the basis of the prosecution’s failure to directly link him with the bullet that killed Njoya. This is probably in line with Tom’s own testimony last July in which he expressly denied ever having deliberately shot Njoya and implying that that the fatal shot was most probably fired by his friend, Carl “Flash” Tundo with whom he had been strolling at a remote corner of the farm where Tundo, a local rally driver, wanted to lease land and build a house when they stumbled on a group of poachers who set their dogs on them. In keeping with Kenya Wildlife Service regulations, Tom took aim at the dogs with a Winchester .303 hunting rifle, killing two. He then claimed that Mr Tundo most probably fired the fatal shot with his pistol. Tundo was initially arrested by police together with Tom but was released a few days later after recording statements. It is unclear what forensic investigation reports were filed in the court.

In subsequent police statements, Tom allegedly confessed to having shot at some poachers on his expansive 55 acre ranch that stretches from Naivasha to Gilgil town. Not surprisingly, in their submissions on Tuesday, lead defence lawyer Ojiambo dismissed these confessions as inadmissible in a court of law. Ojiambo added that there was no eye-witness account of the shooting and also no one actually saw the deceased being shot by anyone.

Meanwhile the prosecution was today expected to prove that Tom deliberately shot at Njoya with an intention to kill and that contrary to assertions that Njoya was a poacher, no civilian is required to apply to Kenya Wildlife Service, let alone the Soysambu Ranch management, for permits to hunt the more than 10,000 different species of small game that roam the ranch. In any case, prosecution emphatically adds, the wild animals are lawful properties of the state, under the care and supervision of KWS, and not Tom Cholmondeley!

Predictably, drums of war can be heard and emotions are already escalating in the Naivasha area in anticipation of a verdict in favour of Tom, who incidentally was also in 2005 acquitted for lack of evidence in yet another murder trial of KWS warden Samson Ole Sisina. Both killings sparked outrage countrywide, with Naivasha residents holding demonstrations around the farm forcing police to deploy 24 hour patrols. One politician called for Tom to be lynched at sight! His acquittal forced police to physically restrain hundreds of war-cry chanting Masaai morans from invading the Delamere estate.

The highly controversial Sisina acquittal had its own high profile casualties. Philip Murgor, the then Director of Public Prosecutions, was immediately sacked by President Kibaki for acting unprofessionally after he dropped Tom’s murder charge, but even then, the accused was never brought back to stand trial until he allegedly killed another man hardly one year later. Although he confessed shooting Ole Sisina, he pleaded self defence claiming he thought he was confronting armed robbers.

The murder of Robert Njoya aside, the Delamere Estate, also known as the Soysambu Ranch, is the envy of many politicians with interests in venturing or expanding into lucrative flower farming and general horticulture, while on the other hand, a rapidly growing population has led to scarcity of land and inevitably bred resentment among poor landless Kenyans who are having to live as squatters in their own country.

Without wanting to be seen to be taking sides or being accused of contempt of court, me thinks this is one of those ‘open and shut’ cases which fortunately or unfortunately has dragged on and on because we all have to respect the rule of law.

Kazi kwako Justice Apondi.