The state has challenged an application by the six cops to exhume the bodies of the two Kianjokoma brothers saying it will cause psychological pain to the family.
Benson Mputhia, Consolata Kariuki, Nicholas Cheruyoit, Martin Wanyama, Lilian Chemuna and James Mwaniki have challenged their prosecution.
They have sued Ipoa, DPP and the IG, arguing that the case should be an inquest, not a prosecution.
Through lawyer Danstan Omari, the officers claim the two brothers Benson Ndwiga and Emmanuel Ndwiga jumped from a police Land Cruiser while escaping arrest, which led to their death.
In their response to the petition filed last week, the Independent Police Oversight Authority and the DPP said exhuming the bodies will cause pain and suffering to the family members.
As of now, the family is already dealing with the pain of suddenly losing two sons under unclear circumstances.
They have also denied claims by the six police officers that the two brothers jumped from the Land Cruiser to escape being charged.
Ibrahim Shunu, senior investigating officer, claims that the two were assaulted by the police during their arrest.
In his affidavit to the court, Shunu says that he took statements regarding the incident that led to their death and it was clear that they had been assaulted.
“It was clear from the witness statements that the deceased persons had been assaulted by the petitioners during their arrest,” Shunu claimed.
He said their investigations showed that on that day at 10.30 pm the two brothers were at Kianjakoma trading centre heading home with their friends when one of the brothers spotted a police vehicle parked around the corner.
“The friends of the deceased persons saw a police officer dressed in civilian clothes and armed with a long stick on patrol approaching the direction where they were,” the affidavit reads.
“They alerted their friends and decided to run back in the direction they were coming from to avoid arrest for contravening curfew orders.”
Shunu claims that as they were running one of the brother’s tripped causing him to lag behind and that a friend of one of the brothers noticed that he kept on looking behind.
The friend told police that at one point they heard a loud bang as though something had been hit, it is then that the 2nd deceased person turned and walked towards where they had left his brother.
“The police officers who were in pursuit of them arrested and assaulted them after which they bundled them in police vehicle registration number GKB 277T make Toyota Land Cruiser,” reads court documents.
According to the affidavit, after putting them in the vehicle the police officers thereafter continued with their patrol within Kianjakoma, Kiriari, and Buvori and later went back to Manyatta police station to put the arrested persons in the police cells.
Thereafter, their bodies were found at Embu Level 5 Hospital Mortuary on August 3.
The state has also opposed the application by the six cops for the court to order an inquest.
Ipoa says the allegation that the circumstances of the case can only be determined through a public inquest is misleading and without basis since the power to institute criminal proceedings solely rests on the DPP.
They are expected to answer to charges of murder on Thursday this week before Justice Daniel Ogembo.
This is after Justice Weldon Korir on Wednesday declined to issue orders stopping their prosecution as they had asked.
Lawyer Dunstan Omari has since withdrawn the matter arguing that because his clients will be charged, the application will be overtaken by events.