When a crime takes place in rented premises: What legal and civic duty do landlords have?
About a year ago, Maureen Njoki shared the painful story of the suffering her three-year-old baby, David Ndung'u', went through at the hands of her friend, Phylis Njeri and her boyfriend, Jackson Ngui.
Baby David had been beaten and tortured to death and his body dumped at a mortuary. It's a story that moved the entire country and led to the hashtag, #justiceforbabyDavid, followed by widespread coverage by mainstream media, bloggers and vloggers. The suspects were arrested, arraigned, pleaded guilty and imprisoned.
But how many such hastags have remained just that due to the complex nature of the cases? Often, the plea is "Not Guilty", and the investigators have to prove difficult cases that may not have cooperative witnesses and evidence, like in the Baby Ndung'us case. Evidence that was long washed away by the time arrests are made.
Legal Obligations
Forensic Expert, Kiplimo Kebenei, the current Chairperson of the Kenya Professional Society of Criminology, a non-profit and non-political organisation that brings together a variety of security experts, has been a forensic expert for more than 15 years, a career that began in the police service where he dealt with all sorts of cases.
He points out that the majority of murders take place behind closed doors where perpetrators have the privacy to commit the crime and the luxury of time to cover it up. And true to this, every other week, there is a story about a suspected murder in the media, deaths that occur in homes, especially in rented premises.
If you are a landlord, have you ever wondered what you would do if your property became a crime scene? Do you know your legal obligations? And did you know you can play a major role in the outcome of the case?
Kiplimo Kebenei is the Chairperson of the Kenya Professional Society of Criminology.
Advocate Chrispine Migele, Managing Partner, Migele and Company Advocates, says the legal obligations of a landlord begin way before a crime is committed on their property. And should a crime be committed, these obligations will come into play during investigations.
“A landlord is supposed to keep the rental property in a habitable condition and the security of the tenant should be guaranteed. Though the law does not explicitly dictate what kind of security measures should be in place, there should be clear evidence that there is an effort to keep the tenants and their belongings secure,” he explains.
The implied terms on the part of the landlord can be found under section 65(1) of the Land Act 2012. Quite detailed obligations adds Migele, have been developed by decided court cases on a case-by-case basis, bearing in mind that the Landlord and Tenant Bill has not been passed into law.
Landlord liable
Features such as a manned gate, locks, CCTV cameras and doorbells should provide such proof. Migele adds that the costs of security installations can be factored by the landlord in the amount of rent charged to the tenant directly or indirectly provided that the written executed tenancy agreement should contain a clause to that effect. He further explains that this obligation is crucial because, “in case of a crime, the landlord can be sued in a civil court if there was no reasonable security when the crime was committed”.
In the case of a fire or an arson attack, if the property lacked proper exits, the landlord could be liable in a civil claim of negligence. Further, the landlord has a civic obligation to keep records of those accessing the building. This could be through CCTV recordings or by hiring security to man the gate and keep these records, which come in handy in case of a crime. In case of a murder, these obligations will be investigated, and the landlord will be an important person in the investigation. For instance, they become a person of interest because the scene of the crime belongs to them.
“They can be a witness, a suspect or stand accused depending on the facts that come up,” says Migele.
Their first duty is to report the matter to the nearest police station as soon as they find out about the incident and ensure they get an OB number. From this point on, they need to be as cooperative as possible with the investigations and provide as much information as possible within their knowledge to enable the investigating officer to get to the bottom of the matter.
In addition, “they should try to secure the scene, by advising neighbouring tenants to avoid the scene as that may compromise the evidence. If there are people within the crime scene, have them restrained from leaving so that the police can get raw data. And most importantly, make sure the body is not moved by anyone, other than the police.”
Remember the records you were to keep? These will come in handy in narrowing down the suspects. Anyone who has accessed the building, or the crime scene within the relevant time frame is a person of interest. You can share CCTV footage or other records with officers.
The landlord’s cooperation with the investigation department is critical so that the investigation team can get a clearer picture of the case. Depending on the nature of evidence a landlord has availed to the investigation team, the said landlord could be categorised either as a suspect or a witness. If the evidence fails to be of any probative value to the investigations, they could be interrogated and discharged.
Chrispine Migele is the Managing Partner, Migele and Company Advocates.
The landlord can choose whether or not to be represented by an advocate during the investigations as that right is provided for under Article 49 of the constitution and Article 50 in the event that the landlord is finally charged in a court of law. They have a right to remain silent and it is also okay to represent oneself.
Once investigating officers take over a case, every ounce of information and every element in the crime scene is crucial.
Kebenei, the forensic expert explains, “The crime scene is a critical component of an investigation. The less contaminated it is the better the outcome.”
And this is why landlords need to do their best to preserve the unit in question before the police and the investigating officer take over. But this is also where the biggest challenges present themselves.
“The first and biggest challenge in securing a crime scene is lack of awareness. You'll find that the people present might not know what to do should there be a murder within their immediate environment. They do not know who to call and even if they do, they may not have the contacts. People tend to do whatever comes to mind and end up destroying crucial evidence. Panic is also a big challenge because when people panic, they struggle to do the right thing. Of course, crowd control is another major issue. Kenyans like witnessing things, and when they show up in large numbers, they can easily contaminate a crime scene. Depending on the location within the residential setting, sometimes getting to the body means walking through large crowds that do not give way immediately. Getting support from nearby police stations might also take time, yet every second lost translates to potential loss of evidence. Lastly, in a location with big businesses, some people will be crowding to loot, rather than assist.”
Incident Control Manuals
While landlords may not be trained to deal with the challenges of securing a crime scene, such as crowd control, Kebenei explains that there are critical tools at their disposal they can use to handle eventualities successfully.
“Each tenant should be given a lease agreement, and within the agreement, there should be an incident procedure manual”.
This is a document that details what tenants should do in case of an incident, be it a suspected murder, a fire outbreak, an accident, faulty electricity and any other potential disaster. The manual should also contain emergency contacts to call depending on the incident. These could be the nearest police station lines, the Kenya Power numbers, the National Construction Authority agents (in case a building collapses), or hospital emergency contacts.
“One of the contact persons should be the caretaker or the landlord so that tenants can call them directly. If tenants know what they are supposed to do, there will be fewer chances of contaminating evidence. This also ensures the landlord is the first responder.”
In the absence of an incident manual, the first response should be from the security company contracted to provide services within the neighbourhood. Kebenei explains that most professionally trained guards go through training on how to manage incidents. Also, the security person should be able to request additional guards to help control the crowd. When the police come in, they will simply hand over professionally.
The tenants also have civil obligations which they should be made aware of. For instance, they are required to report any suspicious activities, cooperate and adhere to set security systems or rules within the premise, and most importantly, should know their neighbours.
Cover-ups
When collecting evidence, investigators are supposed to follow a procedure outlined in the law.
To avoid the scrutiny and bad press that accompanies crimes such as murder, property owners and their agents may be tempted to cover up a crime that takes place within their property, but destroying evidence is a crime, which could land one behind bars.
“We have a code called the Criminal Procedure Code. It outlines the process of collecting evidence professionally and ethically. Everything has to be done as per the code,” says Kebenei.
If there are eye witnesses, their statements will be collected and the rest of the evidence will be secured, documented and collected as exhibits in a professional way. In court, the credibility of the evidence is tested, therefore, the officers need photos that document the entire scene as this will give a picture of where the evidence was at the time of collection. Landlords should therefore provide ample time and space for investigators to do their job without interference.
When it comes to contaminated scenes, there is an elimination process. If the first responders accessed the house, they need to be separated from the case if they have contaminated it, so that they can be eliminated from the evidence and exhibits, but the investigator has to conduct interviews and take their fingerprints as well. In some cases, those who committed the crime might try to cover up their crime intentionally by contaminating the crime scene, however, investigators are normally very thorough and will be able to pick these details.
“One of the most interesting cases I came across a while back is that of someone who was murdered within Nairobi. Upon receipt of the report, we moved in and secured the scene. The TV was on. On the table there was githeri, some medicine and a remote control. Based on this, the initial impression was that the person took the medication, which caused his death.
There was a master bedroom which had a shower and bathroom, but the body was found in the visitor's bathroom. It appeared as though there was a struggle in the master bedroom. We progressed to examine the body, which was face down and noticed water on the head, which gave the impression that there was an attempt to control body temperature with cold water. On turning the body, we established that a bowl had been pushed and held to the mouth and nose to prevent breathing, which caused death. Subsequently, we got further information from the gate that at around 10pm, the deceased man arrived with friends in a car, which left at midnight. At the end of this case, it was clear that some of the things had been placed at the scene to mislead the investigators.”
To avoid the scrutiny and bad press that accompanies crimes such as murder, property owners and their agents may be tempted to cover up a crime that takes place within their property, but destroying evidence is a crime, which could land one behind bars. BY DAILY NATION
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