A yellow police tape at the scene of a crime.
On the night of December 7 and 8, 2016, Susan (not her real name) responded to a distress call from a sick friend in Ruiru town, Kiambu County.
She boarded a matatu from her residence in the area and alighted at Waki stage, intending to take a boda boda for quicker access to her friend’s home.
As she approached a motorcycle, someone suddenly grabbed her hair and, while wielding a knife, warned her not to scream. The male assailant dragged her into a nearby forest away from the road, where they were joined by two other men who began to sexually assault her.
The attackers ransacked her handbag, finding only Sh200. They held her hostage until midnight and, before releasing her, demanded her mobile phone. It was her testimony in court that the assailants used mobile banking to transfer Sh20,000 from her KCB and Equity Bank accounts to her M-Pesa and later transferred the funds to M-Pesa numbers belonging to two of the attackers, identified as Paul Gathaka and Andrew Theuri.
They also stole her mobile phone, which was later traced to Sheila Odhiambo, who had purchased it, according to the prosecution’s evidence.
While testifying in court, the victim stated she could see the attackers' faces clearly as the area was well-lit and none of the men had covered their faces.
She reported the incident to Ruiru Police Station and was escorted to the hospital for post-rape care.
Investigating officer Sergeant Lydia Migwi testified that she referred the victim to Safaricom to obtain her M-Pesa statement, which helped track and arrest Gathaka and Theuri.
Using mobile phone tracking and surveillance technology, police recovered the stolen phone from Ms Odhiambo, who stated she had bought it from a man identified as Edward Gichuki.
Upon his arrest, Edward said he had purchased the phone from David Gichuki, one of the attackers. Edward clearly identified David as the seller.
Sergeant Migwi also testified that police visited the crime scene and recovered the victim’s underpants, scarf, purse and used condoms.
An identification parade was conducted during which the victim positively identified David Gichuki as the man who initially accosted her at the matatu stage.
Gathaka and Gichuki were subsequently charged with violent robbery and gang rape. The whereabouts or fate of Andrew Theuri remain unknown.
According to the charge sheet, Gathaka and Gichuki were armed with a panga and knife during the robbery and stole a Samsung Galaxy phone, ATM cards for KCB and National Bank and a total of Sh32,700.
The trial magistrate found both men guilty. They were sentenced to death for violent robbery, while the 15-year sentence for gang rape was held in abeyance.
Unhappy with the verdict, the two convicts appealed to the High Court, raising several grounds. They argued the trial magistrate ignored contradictions in the prosecution's case and claimed the evidence was insufficient to sustain a conviction. They also said their defences were not adequately considered and that crucial witnesses were not recalled.
They contended that the case against them was fabricated and that they were innocent.
However, Justice Tabitha Ouya dismissed the appeal and upheld the death sentence, stating there was no reason to interfere with the lower court’s ruling.
“Section 296(2) of the Penal Code makes it clear that anyone found guilty of robbery with violence shall be sentenced to death. In my view, the sentence by the trial court was legal and lawful,” said Justice Ouya.
She said the prosecution had sufficiently proved that the convicts robbed the victim while armed and in the company of others.
“I am of the view that the prosecution proved beyond all reasonable doubt the charge of robbery with violence. The case was not marred by inconsistencies or contradictions as alleged by the appellants,” the judge added.
On the gang rape conviction, the judge said the victim’s testimony was corroborated by a clinical officer and by the investigating officer, who confirmed the recovery of items from the crime scene.
On identification, the court found that the victim had ample time and visibility to identify her attackers. She spent several hours with them, and the scene had sufficient lighting.
“I am satisfied that the victim properly identified the appellants as her perpetrators,” concluded Justice Ouya, sitting at the High Court in Thika.
