A middle-aged man who was jailed in January 2012 for defiling his daughter, can now see light at the end of the tunnel after two of his daughters (the victim included), filed submissions at the Machakos High Court to recant their original testimonies, opening a window for the convict’s retrial.
Julius Wambua Musyoki was thrown behind bars (Kamiti Maximum Prison) after his daughter allegedly framed him in a defilement case.
The victim later, in early 2019, confessed that she was instructed by her mother to frame the suspect. The victim said her mother and father had differed over the ownership of a parcel of land, and the mother vowed to teach Wambua a lesson.
The victim’s mother allegedly, thereafter, coached her daughter on what to say to make her defilement story believable.
The sexual assault incident, as was told to the court, happened at the suspect’s home in Mamba Sub-Location in Yatta, Machakos County in April 2011.
In January 2012, Principal Magistrate A.W. Mwangi sentenced Wambua to life in jail after finding him guilty of defilement.
The court had been told that Wambua and his wife separated in 2007, and that Wambua was taking care of the victim and her elder sister, when the said-sexual assault happened. The convict’s estranged wife had left her matrimonial home with their first-born child, a daughter, and their second-born child, a son. However, it later emerged that the former couple had differed -- on several occasions -- over the ownership of a parcel of land, prompting Wambua’s wife to use her daughters to fix her ex-husband.
The victim was 10 years old in 2011, when the said-defilement happened.
The victim’s elder sister had told the court that she saw her dad ‘sexually abusing’ her younger sister.
The two key witnesses’ testimonies condemned Wambua to life in jail.
However, eight years later, the victim came out to confess that she and her sister had been used by their mother to fix their father.
In her new affidavit filed at the Machakos High Court, the victim said her mother had bribed two medical practitioners to write a false report indicating her daughter had been defiled.
“I was too young to understand the power of my testimony then. I only came to understand the consequences of my fabricated statement years later, when my dad had already served several years in jail,” said the victim in her affidavit.
In March 2019, Wambua filed an appeal after his daughter confessed to framing him in the defilement case. The daughter spoke to Citizen Television in March 2019.
Wambua’s application to introduce his daughter’s recanted statement as evidence in his appeal was, however, dismissed by the Court of Appeal in May 2019.
A three-judge bench comprising of William Ouko, Wanjoru Karanja and Jamila Mohamed declined the application by Wambua on the basis that the request was time-barred, and that the court-set timelines for filing and producing evidence had already lapsed.
In his appeal, Wambua through his advocates, Cyrus Maweu and Mike Mwema, argued that that the defilement victim, who was the Prosecution’s key witness, and is Wambua’s daughter, recanted her evidence, hence Wambua wanted the court to consider the change of events.
Wambua, through his advocates, argued that the court convicted him despite the discrepancy on the doctor’s report.
The court heard that the medical examination date to ascertain defilement of the then-10-year-old girl preceded the date of the defilement.
The inmate’s lawyers further termed the victim’s elder sister’s testimony as being “in bad taste”.
The victim’s sister had told the court that she saw her dad ‘sexually abusing’ her younger sister despite the room, where the alleged defilement happened, being filled with darkness.
The Prosecution counsel, Moses Ome’rera, in objecting to Wambua’s request to admit the inmate’s evidence, asked the court not to allow the request as it would open door to every other person who enters into a negotiation after a case is closed to recant testimony.
Ome’rera, who did not dispute the discrepancy with dates as argued by the appellant, maintained that the testimony by the victim’s sister was factual, and -- for that reason -- Wambua belonged in jail.
He asked the appeal judges to hold the position that the finding by previous courts was fair and favourable.
In September, 2019, however, Wambua went back to court to seek retrial. The conditions set, were that Wambua’s daughters (the victim and the key witness) recant their evidences before he is allowed to take the stand again.
And now, both of Wambua’s daughters have filed affidavits at the Machakos High Court recanting their initial statements.
In his current appeal filed at the Machakos High Court, Wambua (listed as the first petitioner) and the Kenya National Commission on Human Rights (second petitioner) have listed the Attorney-General (AG) and the Director of Public Prosecutions (DPP) as the first and second respondents respectively.
On Tuesday, June 23, Wambua through the KNCHR lawyers, Cyrus Maweu, Victor Kamau and Judith Lema, told Justice George Odunga that Wambua’s elder daughter, who lives in Dar es Salaam, Tanzania, had recanted her testimony.
The sisters’ affidavits have since been submitted awaiting commencement of retrial.
According to the KNCHR lawyer, Victor Kamau, Wambua’s children said they were forced to lie to the courts by their mother.
Wambua’s latest petition was fought by the State prosecutor, who in his preliminary objection, told Justice Odunga that the High Court lacks the powers to hear and determine the convict’s appeal.
The court, however, directed the DPP to present that argument during the submission stage.
Justice Odunga further directed the respondents to go through Wambua’s children’s affidavits and file their responses before commencement of retrial on July 14, 2020.
The Attorney-General, who was listed by Wambua as a respondent, withdrew from the matter on grounds that taking part in trials are the DPP’s functions, and not the AG’s.
(Additional reporting by Brian Okoth)