How Wanjigi's former house-help successfully appealed 15-year jail term

A househelp condemned to serve 15 years in jail over armed robbery in former Cabinet Minister Maina Wanjigi's Karen home has been set free by the High Court following an appeal which found that she was wrongly convicted.

Dorcas Mumbi was sentenced in August 2021 by a Kibera Chief Magistrate’s court. She was found guilty of three counts of robbery with violence, after armed robbers stormed Mr Wanjigi's house and stole Sh17,000 cash, Rolex watch watch worth Sh200,000 as well as jewelry valued Sh500,000 and mobile phones worth Sh54,000. The offence occured in November 2013.

Allowing her appeal, the High Court in Nairobi ruled that though Ms Mumbi had confessed to police as being involved in planning the robbery, she repudiated the confession and the trial court failed to scrutinise the said confession statement.

"Despite the fact that the appellant repudiated that confession, the trial court proceeded to accept it into evidence without further scrutiny. In so doing, the trial magistrate erred.

Extreme care

Courts must exercise extreme care in accepting into evidence any alleged confession," said Justice Diana Kavedza finding that the trial court erred in convicting the househelp.

The judge explained that where, as it happened in this case, an accused repudiates a confession the proper procedure is for a trial-within-a-trial to be conducted to determine the admissibility or otherwise of such a confession.

Ms Mumbi said that the confession statement made was not voluntary and was obtained after being subjected to severe beatings.

She testified that she was coerced into signing the statement after being compelled to do so by the recording officer. She denied being an accomplice to the crime. 

The other reason the judge ordered for Ms Mumbi to be set free is failure by the Prosecution to prove that the mobile number used by the househelp to communicate with the alleged robbers ahead of the attack was registered in her name.

The prosecution produced evidence to show that on the material day of the robbery, Ms Mumbi was in communication with two people named Mabonga and Kitiku who were the alleged perpetrators of the offence.

A request for subscriber details of her alleged number was produced. However, the subscriber details sought were never produced in evidence.

Another error

"It is also important to note that call data transcripts produced in court did not bear any identity card number that would otherwise have linked Ms Mumbi to the number, or any transaction between her number and the perpetrators of the offence. Therefore, the prosecution did not prove beyond reasonable doubt that the number  belonged to Ms Mumbi and she was the user of it at the material time," said Justice Kavedza.

Another error by the Prosecution was that the documentary evidence such as the phone call data was produced in court by the case investigating officer instead of the person who had authored the evidence.

"From the trial court's record, this court is unable to find a basis upon which the said mobile data record was produced by a person who was not the author or who developed and obtained the said data from the mobile phones allegedly used in the commission of the crime. It was expected that Safaricom Liaison Officer would be called to produce the said exhibits," said the judge. 

Justice Kavedza said that the investigating officer did not lay a basis upon which the maker of the data could not be present in court to produce the documents, as required by law.

In addition, the judge noted that the trial court proceeded to allow production and reliance on the said electronic evidence without the Prosecution fulfilling the conditions for the production of such evidence as stipulated in Section 106 B of the Evidence Act.  

The Act requires a person producing evidence obtained from electronic record to tender a certificate, identifying the electronic record and giving particulars of the device involved.

The certificate should be signed by the person responsible for the operation of the computer describing how the evidence was obtained from the electronic device.

"In this case, the convicting evidence was adduced by a person who was not the maker of the documents without any basis being laid before the court and no certificate was produced before the court identifying or authenticating the electronic records containing the mobile data statement and describing the manner in which it was produced," said Justice Kavedza.

The judge observed that the identification of Ms Mumbi as the perpetrator and her nexus to the offence was based on the call records from Safaricom Limited and the documents retrieved from the National Registration Bureau. 

"I take issue with how this evidence was admitted and handled by the trial court. Bearing in mind that there was no direct evidence linking Ms Mumbi to the crime, it is now safe to conclude that the circumstantial evidence adduced was extremely remote to link her to the robbery. It was then not safe to convict her," ruled the judge.

At the trial court, the prosecution called eight witnesses to support its case against Ms Mumbi.

As the first Prosecution witness, Mr Wanjigi testified that on November 22, 2013 at around 8.30pm, he was in his house in Karen in the company of his wife and a visitor. 

Also, in the house, were two house-helps (Ms Mumbi and Eunice Nungari), who were in the kitchen preparing a meal.

Suddenly, four armed men armed with a gun and machetes went to the sitting room area. One of them was armed with a gun while the others were armed with machetes. 

The two house-helps were escorted to the sitting area and their hands and legs were tied.

The assailant with a gun ordered Mr Wanjigi to take them to his bedroom which he obliged. They demanded to know the location of his guns. When he tried to trick them, they assaulted him and threatened to kill him. 

Subsequently, the assailants took the safe, two Samsung Mobile Phones each valued at Sh54,000, a Rolex watch valued at around Sh200,000, jewellery valued at Sh500,000 and Sh17,000 in cash. They also took his second gun which was hidden behind his bed after questioning him. 

He told the court that the questioning involved being tortured with a hot iron box that was placed on his body. Thereafter, he was ordered to lie down and his hands and legs were tied. The other persons in the house also had their hands and legs tied together by the robbers.

The assailants also took a Television set and left the premises after serving themselves a drink.

He testified that he was able to untie himself at around 2.30pm and sought assistance by pressing their alarm. He further narrated that he was taken to hospital by his son Jimmy and contacted the police who arrived at the scene.

Sergeant John Njoroge testified that he was attached to the Flying Squad in Nairobi and that he was directed to investigate the theft of the mobile phones from the former Minister.

One of the stolen phones was tracked and traced in Kibera and the person found in possession was a lady known as Hilda.

She informed him that she had bought the phone from two individuals named Kitiku and Mabonga. The two were also traced and when the police tried to arrest them, a gunfire ensued which resulted in their deaths.

He narrated that after they recovered mobile phones from the two, it indicated that they had been in communication with Ms Mumbi. They proceeded to arrest her. She claimed that one of the killed suspects had seduced her and was known to her. 

Another police officer, Corporal Francis Singila who was the case investigating officer testified that data from Safaricom confirmed that Mabonga had been in contact with the househelp on the night of the robbery.

In the company of other officers, he arrested her and that she later confessed to being involved in planning the robbery. 

Chief Inspector Stanley Gitobu, the officer commanding Karen Police station, testified that on November 30, 2013 Ms Mumbi was taken before him intending to confess. He cautioned her and prepared a certificate of caution. 

He testified that she confessed that she had been in a romantic relationship with one Mabonga from around 2011.

That the said Mabonga made inquiries about the nature of her work and her employer. Mabonga proposed that she make arrangements for them to visit her employer’s premises and steal from him since he was rich. 

But in defence, Ms Mumbi told the court that she was forced to sign a confession. She denied being an accomplice to the robbery. She also denied knowing the suspects. 

In her appeal, she told the High Court  that the ingredients of the offence of robbery with violence were not established by the prosecution. 

Firstly, she said she was one of the victims of the offence and as such was not among the four male attackers who robbed her employers. 

Secondly, she was not armed with a dangerous weapon as she was among the victims of the attack.  She also contended that she was not in the company of the perpetrators of the offence during the incident and that the stolen goods were not found in her possession.