The High Court has ordered a retrial of a man who was jailed for life in 2011 after he was convicted of defiling his daughter.
Julius Musyoki Wambua challenged his conviction and sentencing after a local television aired an interview of his union his daughter, who said her mother forced her to testify against him.
This is the second attempt that Musyoki is making to get justice after his case was dismissed by the Court of Appeal in May 2019.
A three-judge bench comprising of judges William Ouko, Wanjiru Karanja and Jamila Mohamed declined the application on the basis that the request was time-barred and that the court-set timelines for filing and producing evidence had already lapsed.
On Wednesday, Musyoki through Kenya National Commission on Human Rights (KNCHR) lawyers Cyrus Maweu, Victor Kamau and Judith Lema told Justice George Odunga that Musyoki’s elder daughter, who lives in Dar es Salaam, Tanzania, has also recanted her testimony.
In the 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.
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.
Mr 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 Mr 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.
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 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.
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.