Piece by: SHARON MWENDE

04 October 2023

•Gitonga claimed a woman approached him and claimed she had been raped there, prompting him to make a statement at the Kiamumbi police station.

A businesswoman with the code name MGN was attacked on her way home from Muthurwa market on December 22, 2009, by a man she knew well and who was also a member of her family.

Around eight o'clock, MGN had just exited the Maziwa stage in Kasarani when she noticed a man who appeared intoxicated, stumbling and falling.

She was told to go to the person but, frightened and yelling, she fled in the direction of her house. The man pursued her and caught up with her.

She recognized the man as Patrick Ndungu Kariuki, who grabbed her by the neck and threatened to stab her to death if she continued to scream.

MGN stayed silent out of fear for her life.

Ndungu used the chance to drag her into a neighbouring maize field and demand that she hand up her cash and mobile.

MGN, however, informed him that she had just Sh150 because she had just returned from the hospital and gave him the cash.

He then demanded intercourse, but the woman tried to protect herself by claiming she was HIV positive.

Ndungu disagreed, claiming that he knew her and her husband well enough to know that she wasn't ill.

He tried to pull down her trousers but she fought, causing him to shred them and then proceed to rape her after he was satisfied with his conclusions.

The man got off MGN when she complained about being weary at some point during the act.

He sat down next to her and began chit-chatting with her, appearing to give her some space before attacking her once more.

This time, he stated that the initial deed had not satisfied him.

Ndungu was telling MGN at the time how much he had always wanted to have sex with her and how the desire would arise whenever he saw her.

After the assault, he ran away after stealing her pocketbook, which contained Sh3,000, a pair of socks, a CD, a blouse, and her ID card.

MGN made an attempt to catch up with him but gave up as he crossed a river.

Before calling her husband, she went to her aunt's house and explained what had transpired.

She picked up the torn knickers she had left there and headed to Nairobi Women's Hospital when her husband arrived.

The next morning at around 5 am, the couple reported the incident to the Kiamumbi Police Station, where MGN assisted in locating Ndungu's arrest at a building site.

Under section 87(a) of the Criminal Procedure Code, he was charged, held in detention for a year, and then released.

Ndungu was later detained once more, taken to the same police station, and charged immediately in court.

He was brought before the Kiambu Chief Magistrate's court and accused of rape and robbery with violence.

Edward Gitonga Kariuki's testimony, which supported MGN's testimony, claimed to have heard a scream on the relevant night about 30 metres from his home.

However, he didn't venture outside to investigate until daylight, when he went to his farm and discovered a chaotic scene.

Gitonga claimed a woman approached him and claimed she had been raped there, prompting him to make a statement at the Kiamumbi police station.

MGN also stated that she had noticed Ndungu by his voice and the lights from passing cars.

Ndungu and the woman's husband were buddies who frequently ran into one another on their way to work and had beverages.

He and the husband went back approximately ten years.

Ndungu claimed in his defence that he was a mason and had been detained while on the job by persons who had come to get a plan for the house that was being built.

They instructed him to call them directly once he informed them that the plan was with the owner.

The court was told that when he hesitated, they took him to the Kiamumbi police station and then arrested him.

In relation to robbery with violence, the trial court found him guilty of the counts, found him guilty, and condemned him to death.

He received a ten-year prison sentence for rape.

The second punishment was mandated to be suspended while the first sentence was carried out.

An activity is temporarily suspended while awaiting the conclusion of another action.

Ndungu challenged his conviction and punishment to the High Court, which after hearing his case denied the appeal and confirmed the trial court's decision.

He then filed a second appeal with the Court of Appeal, criticising the High Court for its determination that the prosecution had established the elements of the primary counts that were preferred.

As a first-time offender, he claimed that the punishments were excessively severe and punitive given the circumstances.

Ndungu requested that the appeal be upheld and that the judgements against him be overturned.

He asserted that MGN never mentioned his acting violently during the theft.

But the court ruled that, in addition to the knife threat he made to his victim, the act of raping her constituted violent in and of itself.

Judges Asike-Makhandia, Agnes Murgor, and Sankale Ole Kantai of the Court of Appeals underlined that the death penalty is still legal in Kenya and may be used when it is appropriate.

"Having said as much, we are not convinced that the appellant’s submissions on the sentence are noteworthy. We accordingly find nothing that can cause us to disturb the judgment of the 1st appellate court in its entirety," the judgment delivered on September 22, reads.

"The appeal on both conviction and sentence is in the premises dismissed."