For 17 years now, Daniel Wanyeki Gachoka has been in jail at Kamiti Maximum Security Prison on trumped-up charges of defiling his daughter.
His daughter, who was only seven when her father was arrested on November 27, 2007, was coerced to give false testimony, leading to his conviction on two counts of incest.
Mr Wanyeki was framed by his brother, his mother-in-law and a police officer who threatened the little girl to testify that her father had repeatedly violated her.
In 2020, the girl who was now an adult (20) reached out to her father at Kamiti Maximum Prison and confessed how she was pressured to fix him. She apologised to her father and informed him she would correct the wrong.
Mr Wanyeki was the last born in a family of six. His siblings were Mr John Kago, Ms Ann Nyambura, Mr Stephen Gachanja, Ms Jane Wangui and Ms Margaret Ngonyo.
Their father, Mr Gachoka Kago, had bought properties from Githunguri Ranching Company. The land included 1.25 acres on which the family home was built in Gitothua in Ruiru.
Before his death on June 1, 1986, Mr Gachoka had shown his children the properties. He had also given all ownership documents, including share certificates and ballots, to his relative Kariuki Kamau for safe custody.
Mr Gachoka’s eldest son, John, was of unsound mind. He neither married nor bore children. He died in 2020.
Mr Gachanja had been given a quarter of an acre in Ruiru to settle should he get himself a wife. But after their father died, Mr Gachanja sold the plot and relocated to the family compound in Gitothua.
According to court papers, Mr Gachanja then approached Mr Kariuki saying his siblings had given him authority to subdivide the family land. Mr Kariuki surrendered the documents.
Mr Gachanja intended to sell the property but when he approached his brother Wanyeki with the suggestion, he refused.
The land transaction was subsequently contested in court and the transfer was reversed. On January 20, 2022, Justice Daniel Mwangi Mugo ordered the cancellation of the title held by the third party and any subsequent subdivisions or registrations. The judge ordered the suit land registered in the name of Margret in trust for the estate of Gachoka Kago.
The tussle for the control of their father's estate worth over Sh50 million would sow the seeds for discord between the brothers. Mr Gachanja plotted his revenge against his brother Wanyeki. He was the first to claim his brother Wanyeki had been defiling his daughters. He told his sister Margret that Wanyeki was sexually assaulting his daughters because his wife, who was struggling with alcoholism, had abandoned them. But these allegations were dismissed.
But Mr Gachanja then turned to Wanyeki’s mother-in-law, Rose Wanjiku, with the same allegations. The children were taken for medical examination at Ruiru Hospital by their maternal grandmother.
A medical examination report produced by the doctor in court later noted although the hymen of the seven-year-old was not intact, she did not have any lacerations or bruises.
Ms Wanjiku filed a complaint at Ruiru Police Station. At the station, it would emerge later, that the girls were coerced to implicate their father in the crime.
On November 27, 2007, Mr Wanyeki was arrested and charged in Thika Law Courts with two counts of incest contrary to section 20 (1) of the sexual offences act and an alternative charge of incest contrary to section 6 (a) as read together with section 11 (1) of the sexual offences Act.
He was not granted bail. Shortly after his detention, Mr Gachanja demolished Mr Wanyeki's house and evicted the little girls. The children were later rescued from the streets and taken to a children’s home. They were given new names to conceal their identities.
With Mr Wanyeki in police custody, Mr Gachanja, who had retrieved the original share certificate and the ballots for the land, colluded with officials of Githunguri Ranching to transfer the land to a buyer. Without a grant of letters of representation or a confirmed grant, there was no way the land could be transferred legally.
In the criminal trial, Mr Wanyeki was charged that on diverse dates in July 2007, at Gitothua village in Ruiru, he defiled his two daughters then aged nine and seven years. He was, however, acquitted on the first account after his nine-year-old daughter denied that her father had sexually assaulted her.
However, the seven-year-old girl testified their father sexually assaulted her daily. Mr Wanyeki appealed against the conviction but the sentence was upheld.
Dissatisfied with the decision of the High Court, Mr Wanyeki moved to the Court of Appeal in Nairobi. But instead of relief, the appellate court upheld his conviction and enhanced the 20-year sentence to life imprisonment. The judge cited provisions of section 20 of the Sexual Offences Act. Having exhausted all the appeal mechanisms, He resigned to fate to serve his term.
In 2020, Mr Wanyeki's daughter, Lucy Nduta, now an adult, reached out to him at Kamiti Maximum Prison and confessed that a senior police officer and her grandmother had coached her to fix him. She agreed to swear an affidavit that she had been forced to give the false testimony. In light of the new and compelling evidence, the case was reopened on November 17, 2021.
''I am the daughter of the petitioner therefore competent to swear this affidavit. Our maternal grandmother, Rose Wanjiku, came to our house in Gitothua in Ruiru and took us to Ruiru Hospital and later to the police station where she talked to a policewoman who later introduced herself as Aunt Odhiambo.
“They told me to say that I had been defiled, failure to which the policewoman would shoot and kill me and my sister Lucy,” she stated in the affidavit.
“My sister Lucy and I were then taken to Ruiru Hospital again for some medical examination but we were never told of the examination result. I was never defiled by my father as alleged in the charge sheet,” she stated.
“Prior to that, we used to play hide and seek with other children in the village up until late in the evening. Girls and boys would hide in bushes and other places where they would engage in immoral conduct such as touching each other’s sex organs and sometimes sex,” she explained in the affidavit.
She went on: “I once caught my sister engaging in immoral behaviour with a neighbour’s son and when they saw me, they ran away. Soon after our father was arrested, we were taken to Zabibu Children’s Centre in Kimbo and later to Christ Our Refuge in Githurai.”
On November 21, Kiambu High Court judge D.O. Chepkwony quashed the conviction of Mr Wanyeki, poking holes in the evidence that the prosecution team relied on to charge him. The accused was represented in court by Triple N W & Co Advocates.
“The conviction and sentence in Thika Criminal Case No .5165 of 2007, Nairobi High Court Criminal Appeal No.371 of 2008 and Nairobi Court of Appeal Criminal Court Appeal No.276 of 2011 are hereby quashed and set aside.
''The matter is hereby remitted to the trial court for a new trial to be initiated based on the recanted evidence and any further evidence the party may deem necessary to present,’’ Justice Chepkwony ruled.
