Samuel Kanambiu Kamande was just another street boy. Known also to his friends as Simon Mburu, he made a living collecting waste paper and selling it to agents of recycling firms. Kanambiu left his home in Kiambu District when he was eleven years old to Nairobi. He first settled at Kariokor where he lived alone on the cold streets. Later, he made friends with others like him who had come to Nairobi before and eventually settled at Nagara. It is said he was 15 years old but possibly about 21.
On the evening of August 11, 1994, Kanambiu met his death. No two people seem to agree on what actually happened. What is agreed on is that he was shot by a police reservist Arvinderjit Singh Chadha while he escaped arrest. The news of Kanambiu’s shooting created a lot of suspicion against the police and after immense public pressure, Arvinderjit was charged on court with murder in a case that came to be popularly known as the Police Reservist Case.
There were few disputes on the facts leading to Kanambiu’s shooting. It was agreed Kanambiu and two of his friends had knocked of the left hand side from the car of Janethar Gathigia as she drove off with it.
Kanambiu’s friends however disputed this fact both in court and outside and maintained that the deceased was not a thief and had not stolen from the lady. It was agreed that Arvinderjit chased Kanambiu and ordered him to stop, shooting several times into the air as a warning. It was also agreed that Kanambiu had a knife with which he threatened Arvinderjit. The only real dispute in the case was whether it was reasonable for the police reservist to shoot at Kanambiu in self-defence.
In the defence, Arvinderjit stated that he had chased Kanambiu to arrest him for committing a felony and had no intentions of killing him. But during the chase, Kanambiu suddenly swung round, knife in hand and attempted to stab him. Kanambiu was then three to four metres away from the reservist. Due to the suddenness of the attack, Arvinderjit said, he did not have time to consider other available options. He opened fire.
The reservist said he aimed his gun at the stretched hand and fired twice. He missed. Kananmbiu then ran away again for a short distance, the reservist following. Then Kanambiu swung around again and again the reservist fired. But this time, the reservist said, his gun had accidentally slipped to automatic fire and it spewed out several shots in quick succession. He therefore turned the gun upwards to control it and as a result accidentally shot Kanambiu.
The burden that lay on the prosecution in proving the murder charge against Arvinderjit was an extremely heavy one since the accused was a police officer. The Police Act gives officers the right to used firearms against any person in lawful custody charged with a felony attempting to escape, or any person who by use of force attempts to rescue such a person, and any other person who by force, attempts to evade arrest. But in any of this case, one condition must be fulfilled.
In the case of an escaping convict, the officer must not use the firearm unless he has reasonable grounds to believe that he cannot otherwise prevent the escape and unless he gives warning to such persons that he is about to use the firearm against him and the warning is unheeded. The police officer must therefore first shoot in the air to warn the escaping prisoner of his intention to shoot him.
In the event of a person resisting arrest, the officer must have reasonable ground to believe that he or another person is in danger of grievous bodily harm or that he cannot in any other way effect the arrest or prevent rescue.
Courts usually ask tow questions when dealing with the right of police officers to shoot while in the course of duty. The first question is whether it was necessary to shoot in order to effect the arrest. The second is whether the evil that would follow from failure to effect the arrest was so great that a reasonable man might think himself justified in taking another’s life to avert that evil. Killing would therefore be reasonable in the event of an escaping person who is likely to cause the death or harm of another person if left at liberty.
Lord Diplock, a Law Lord in the English House of Lords summarized the inquiry asking:
“Are we satisfied that no reasonable man (a) with knowledge of such facts as were known to the accused or reasonable believed by him to exist (b) in the circumstances and time available to him for reflection could be of the opinion that the prevention of the risk of harm to which others might be exposed if the suspect were allowed to escape, justified exposing the suspect to the risk of harm to him that might result from the kind of force that the accused contemplated using.”
Judges however warn that the standard of judging reasonableness of the actions of the accused should not be a strict one. One English judge warned that “detached reflection cannot be demanded in the presence of an uplifted knife”. It is all too easy for people who have never been in a similar situation to look at it later and require a standard of self-control impossible to achieve in such circumstances.
Arvinderjit relied partly on his right as a police officer to use a firearm against Kanambiu. He also relied on his right to private defence or what is popularly known as self-defence. Every citizen has a right to use force in defence of himself against an unjustifiable attack.