On December 22, 2009, a businesswoman going by the code name MGN was attacked by a man she knew well and who was also a relative on her way home from Muthurwa market.
Around eight o’clock, MGN was leaving the Maziwa stage in Kasarani when she saw a man tripping and falling who appeared intoxicated.
Although she was instructed to go to the individual, she sprinted back toward her house while screaming in fear. He went after her and eventually caught up with her.
The man who held her by the neck and threatened to stab her to death if she continued to scream was Patrick Ndungu Kariuki, who she later identified.
MGN kept quiet out of concern for her safety.
Ndungu took advantage of the opportunity to drag her into a nearby field of maize and demand that she over her money and phone. MGN, on the other hand, told him that she only had Sh150 because she had just come from the hospital and given him the money.
He then wanted sexual contact, but the woman defended herself by saying she had HIV. In opposition, Ndungu asserted that he knew her and her husband well enough to be aware of her lack of illness. She resisted him when he tried to pull down her pants, so he tore them instead. After he was pleased with his assessment, he raped her.
When she cried out that she was tired at some point during the deed, the man left the MGN. He appeared to give her some room before attacking her again as he sat down next to her and started speaking with her. He said that the original act had not satisfied him this time.
At the time, Ndungu was expressing to MGN how much he had always desired sex with her and how the desire would come whenever he saw her. He stole her pocketbook, which contained Sh3,000, a pair of socks, a CD, a blouse, and her ID card, before fleeing after the assault. As he crossed a river, MGN tried to catch up with him but gave up.
She went to her aunt’s house and told her what had happened before phoning her husband. When her husband came, she picked up the ripped underwear she had left behind and went to Nairobi Women’s Hospital.
The couple reported the event to the Kiamumbi Police Station the following morning at around 5 am, and MGN helped locate Ndungu’s arrest at a construction site. He received a charge, was imprisoned for a year, and then was freed under section 87(a) of the Criminal Procedure Code.
After another detention, Ndungu was brought to the same police station and charged right away. He was presented in front of the Kiambu Chief Magistrate’s court and charged with rape and violent robbery.
In support of MGN’s testimony, Edward Gitonga Kariuki testified that he had heard a scream on the relevant night about 30 meters from his house. He didn’t go outside to see though until daybreak, when he walked to his farm and found a disorderly sight.
Gitonga allegedly made a statement at the Kiamumbi police station when a woman allegedly contacted him and said she had been raped there. MGN added that she had picked up on Ndungu’s voice and on passing cars’ lights.
On their way to work, Ndungu and the woman’s husband frequently crossed paths and had drinks together. He had known the husband for around ten years. In his defense, Ndungu stated that he was a mason who had been detained while working by someone who had come to obtain a blueprint for the house that was being built.
Once he told them the arrangement was with the owner, they told him to phone them directly. According to testimony given in court, they transported him to the Kiamumbi police station and then detained him after he resisted.
The trial court found him guilty of all charges of robbery with violence, found him guilty, and sentenced him to death. For rape, he was given a ten-year prison term.
While the first sentence was being carried out, the second punishment was required to be suspended.
Ndungu appealed his conviction and sentencing to the High Court, which heard his case and dismissed the appeal, upholding the judgment of the trial court. The High Court’s finding that the prosecution had shown the components of the primary counts that were preferred was criticized in a second appeal that he later filed with the Court of Appeal.
He asserted that, as a first-time offender, the sentences were overly harsh and punishing. Ndungu asked for the judgments against him to be overturned and for the appeal to be upheld.
He said that MGN never brought up his use of force during the theft. The court, however, determined that his rape of his victim constituted violence in and of itself in addition to the threat he made to her with a knife.
The Court of Appeals’ judges Asike-Makhandia, Agnes Murgor, and Sankale Ole Kantai emphasized that the death sentence is still legitimate in Kenya and that it may be applied when necessary.
“Having said that, we are not persuaded that the appellant’s arguments regarding the sentence are significant. The ruling issued on September 22 says, “We accordingly find nothing that can cause us to disturb the judgment of the First Appellate Court in its entirety.”
“The appeal on both the conviction and the sentence is in the premises dismissed.”
