Man jailed for rape freed over sloppy identification

Sunday, 24th July 2011

By Wahome Thuku
On April 15, 2007, a 27-year-old woman was raped in broad daylight as she walked home from church in Thika District. Her account of the 2pm incident reads like a scene from a horror movie.
The woman was carrying her baby when she noticed a man walking behind her accompanied by about ten dogs.
The man, who was later identified as Francis Kyeti Kivuva, was also carrying a bow and arrows.
When Kyeti and his dogs came closer, the woman gave way. The man passed, then stopped and told the woman that he wanted to sleep with her. The woman asked him what he meant. The man pointed an arrow at her and repeated that he wanted to sleep with her.
Sensing danger, the woman took to her heels, screaming.
Kyeti gave chase and caught up with her. He held her by the neck and forced her and the baby to the ground. He took the baby and put it aside.
The woman said she tried to fight back but the man slapped her twice on the face. The dogs assumed their master was under attack. To "defend" him, one bit the woman on the upper arm and the other on the knee. She was subdued and raped as her child watched helplessly.
The woman’s screams attracted the attention of another woman.
She rushed to the scene and found the man raping the victim with a crying baby next to them. She was unable to intervene because the dogs had surrounded the scene. She joined the rape victim in raising alarm.
ScreamsAnother man, Mr Safari Kimbi, heard the screams. By the time he got to the scene, the rape victim was dusting herself and crying. She was taken to Ngoliba Administration Police camp.
There an officer gave her a note to seek medical treatment at Ngoliba Health Centre. The note indicated that she had reported having been raped by a person unknown to her. Medical personnel at the centre also recorded that she was raped by someone unknown to her.
She was then referred to Thika District Hospital where she was examined by one Dr Eric Osoro on the same day. The doctor noted that the woman had bite marks on the arm and bruise marks on her knees. But he did not see any injuries on her private parts, or discharge or any infection.
On April 17 when she was discharged from hospital, she officially reported to Thika Police Station. But on April 16, Kyeti had been arrested by officers from Ngoliba AP camp and taken to Thika Police Station.
On April 24, he was arraigned before Thika Resident Magistrate B A Owino charged with rape.
The complainant and the second witness were led in evidence by one Corporal Mutisya. The woman said she was in hospital when Kyeti was arrested and that she had been inquiring about him before the arrest.
The magistrate saw the dog-bite marks on her.
Police Constable Lydia Rutere investigated the case. She told the court the woman told her she knew her attacker physically as she had seen him several times before.
Dr Osoro was abroad during the trial. His report was produced in court by a colleague, Dr Wilfred Kandenge, together with that of Ngoliba Health Centre.
In his unsworn evidence, Kyeti said he was arrested on April 16 by two APs who were known to him on allegation of raping the woman whom he did not know.
Kyeti was convicted and sentenced to 12 years imprisonment.
He appealed to the High Court against the conviction and the sentence on six grounds.
First, he claimed his constitutional rights had been violated by holding him in custody for seven days before taking him to court. Second, he asserted that the case had been handled by an unqualified police officer being below the rank of Assistant Inspector, hence the trial was a nullity.
Third, he pointed to contradictions in the evidence, which was uncorroborated and inconclusive. Fourth, he said there was no evidence on how and why he was arrested and no case was proved against him.
Fifth, Kyeti pointed out that as per the woman’s evidence, she did not scream during the rape yet the second witness said she was attracted by screams. The woman had testified that Kyeti was arrested on April 15, but PC Rutere said he was arrested two to three days after the incident.
Doctor’s evidenceAnd finally, Kyeti said the doctor’s evidence had exonerated him from the offence. The appeal was heard by High Court Judge Fred Ochieng.
The State maintained they had proved the case beyond reasonable doubt. The complainant had given a clear account of the ordeal.
It was during daylight and she had identified the attacker.
Justice Ochieng said Kyeti was free to follow up claims of violation of his constitutional rights in a suit independent of the criminal case.
He also noted that Section 85(2) of the Criminal Procedure Code had been amended removing the requirement that a police prosecutor had to be at least an Assistant Inspector.
The judge observed that the woman’s evidence that she ran away screaming had been corroborated by the second witness.
But Ochieng questioned the reasons for Kyeti’s arrest. None of the APs had been called to give evidence. Other witnesses said they did not know him by name.
"That means that the identity of those who arrested him remains unknown," Ochieng concluded.
No one had testified as having given Kyeti’s name or description to the police.
"In the circumstance there is no evidence to show who effected the arrest or the basis for it," the judge held.
No police identification parade was organised. Kyeti was never taken to hospital for examination to verify the rape allegations. The judge said Police Constable Rutere did not specify how the complainant had identified the assailant.
Police recorded in the P3 Form that the woman was raped by someone known to her. But in the same form on April 18, Dr Osoro said the woman told him she had been raped by a person unknown to her.
"It’s thus not clear whether she knew or did not know her assailant prior to the incident," the judge concluded.
But the woman had told the magistrate court that she knew Kyeti physically.
"That would imply that she changed her mind and later told the court that her assailant was a person she had known physically, that raises issues regarding her integrity," judge Ochieng held.
Last Thursday, the judge quashed the conviction and set aside the sentence.
After four years in prison, Kyeti was set free.