Justin Lauzi Mwangi and his friend Kelvin Wachira Kamau were 12 years ago charged before a Makadara chief magistrate's court with robbery with violence, gang rape and committing an indecent act with an adult contrary to the law.
The magistrate acquitted them of the charges of rape but found them guilty of robbery with violence and sentenced them to death on December 5, 2013.
The two moved to the High Court in Nairobi but their consolidated appeals were dismissed on October 22, 2015.
Both Mwangi and Kamau were determined to get back their freedom and through M/S Asitiba and Associates Advocates, they sought the intervention of the Court of Appeal.
Last week on July 7, 2023, appellate judges Asike Makhandia, Agenes Murgor and Sankale ole Kantai set Mwangi and Kamau free saying their conviction was erroneous.
Whether the two men will seek reparations is not yet clear but the decision is a big relief that has earned them back their freedom and put the spotlight on judges relying on evidence from one witness to convict accused persons.
Mwangi and Kamau were accused of robbing Mercy Wavinya Kioko of Sh1,000, a mobile phone and a make M-620 speaker while armed with a knife.
The offence was allegedly committed on July 26, 2011.
Kioko told the trial magistrate that she met with Mwangi at Mutinda along the Outering Road in Nairobi and he asked her for directions to a place she did not know.
Mwangi had introduced himself to Kioko as "Brother Mark."
Kamau then appeared and joined the conversation. He said he knew Mwangi as a prophet.
Mwangi then made some correct statements regarding family, saying Kioko's mother had died in 2009 and that she had three siblings.
It was Kioko's testimony that that statement led her to believe that Mwangi was a true prophet. She then led the two men to her house to cleanse it.
While in the house, she was asked to put various items on the table to be prayed for. The court heard that Kamau picked the items and started walking away with them, a move that roused Kioko's suspicions.
It was at that point that she tried to make an excuse of going to the shop in order to leave but Mwangi grabbed her and put a knife to her throat and threatened her.
Kamau held the knife on Kioko's throat as Mwangi took off her clothes before they raped her in turn, took her things and fled.
Kioko reported the matter to the police.
In court, she said she had spoken to the two men for one and a half hours before they proceeded to her house for the prayers. They spent about 45 minutes in that house.
Meanwhile, she had made some deposit to a phone number before the prayers started. That was the mobile number police used to lure the two men to their arrests. None of the stolen items was recovered.
There were only four prosecution witnesses in total. The others were Police Constable Paul Adawo who was then attached to Buruburu police station and Corporal Grace Wambui who investigated the matter.
Wambui took Kioko's statement and assisted in the arrests of both Mwangi and Kamau. Wambui tracked the phone number that had received cash from Kioko and deceived the two men to come and collect some money at a certain location. They were arrested when they arrived at that location.
Another witness was Dr Zephania Kamau who said he examined Kioko who had been attended at Medicins Sans Frontiers at Mathare and his verdict was that Kioko's genitalia was normal and there was no discharge.
However, the magistrate found that a prima facie case had been made against Mwangi and Kamau and subsequently placed them on their defence.
They gave unsworn statements with Mwangi stating that Kioko was his girlfriend, and that she asked him to meet at Mutindwa only for her to have him arrested and charges proffered against him for something he knew nothing about.
Kamau also denied committing the offence. He said he had traveled from his workplace in Mombasa after losing his job. On arrival in Nairobi, he accompanied Mwangi to Buruburu where he was surprised to be arrested.
The magistrate sentenced the two to death and their appeal at the High Court in Nairobi was dismissed.
In their case at the Court of Appeal, Mwangi and Kamau held that they were wrongly jailed as there was no direct evidence that placed them at the scene.
They said Kioko’s evidence was uncorroborated and that the defence that Kioko was a girlfriend to Mwangi was never considered to its logical conclusion.
They asked the appellate judges to quash their conviction and set aside the sentence.
The Court of Appeal judges said Mwangi and Kamau's appeals raised substantial issues of law that required their determination.
The judges held that there were gaps given Kioko did not raise an alarm for the many minutes she was with the appellants including right inside her house which was on the upper floor of their block of houses.
They also faulted Kioko for not giving any description of her attackers to the police.
"There was the allegation by the 1st appellant (Mwangi) that she was his girlfriend. This allegation was made during the trial but was not investigated at all," the judges said.
The appeal court found it interesting that Mwangi correctly stated the date Kioko's mother died and the number of her siblings.
"There was also evidence that Kioko was in a telephone conversation with the 1st appellant (Mwangi) and we think that it was necessary for the police to carry out proper investigations to establish whether there was a relationship gone sour between him and Kioko," they ruled.
"The fact that there was a telephone conversation between the two which finally led to the 1st appellant freely going to Buruburu to the rendezvous he had agreed with Kioko should have led to the suspicion that the two knew each other quite well.
"Also, the fact that she testified that she freely led the appellants to her house was something that should have been investigated to establish the true motive why she did that."
The judges also took issue with the police witness who testified that she used the same phone data to trap the two men saying no evidence of such data was produced in the case and that it was not possible in law in those circumstances to link the two mobile phones.
"Without any evidence from an expert from the mobile telephone provider on communication between Kioko and the 1st appellant, the High Court and the trial court should not have relied on any evidence regarding communication between the two," they said.
The appeal bench also queried why it was alleged that Kioko was treated at Medicins Sans Frontiers but no evidence was called from the facility.
"We agree with counsel for the appellants that convicting the appellants in those circumstances where the court relied on the uncorroborated evidence of one single witness (Kioko) which left many unanswered questions was wrong," the court said.
The conviction was not safe at all. We allow the appeal by quashing the conviction and setting aside the sentence. The appellants shall be set at liberty forthwith unless otherwise lawfully held."