It was a moment engulfed with tears of joy after a man who had been serving a life imprisonment sentence after he was convicted of incest eight years ago was set free after new evidence emerged exonerating him.
In a landmark judgement delivered by Justice George Odunga in Machakos yesterday, Julius Wambua Musyoki was allowed to walk to freedom after the court quashed the jail sentence meted on him on January 24, 2012, by a principal magistrate’s court in Kithimani.
Justice Odunga directed that Wambua be freed on a Sh30,000 cash bail pending fresh trial or any appeal by the Director of Public Prosecutions (DPP).
He had been convicted of defiling his daughter Dorcas Mwende, then a minor aged 16 and jailed at Kamiti Maximum Security Prison. It later emerged that Mwende had been coached by her mother to give false evidence to fix her husband with whom they had marital differences.
It was on this basis that Wambua moved to the High Court in Machakos and filed an application under a certificate of urgency, and petitioned the court to overturn the judgment that had condemned him to life imprisonment. The Kenya National Commission on Human Rights (KNCHR) was listed as second petitioners.
According to court papers seen by The Standard, Wambua through his lawyer Cyrus Maweu invoked Article 50 (6) a and b of the Constitution, which gives room for a new trial for a criminal offence if the person’s appeal has been dismissed by the highest court to which the person is entitled to appeal, or if new and compelling evidence has become available.
“The first petitioner has lodged two appeals both of which have been dismissed. The fact that the complainant whose evidence has in totality been refuted, rebutted, recanted and abandoned, her testimonies affirming coercion and threats from her mother at the time of making them in the trial court is in itself new and compelling evidence that would have resulted in a different verdict,” he said. In a sworn affidavit, Wambua had pleaded that her daughter, who was the complainant, had since recanted her testimony which had been a fabrication and given under coercion.
“The first petitioner continues to serve life imprisonment term for a crime he was falsely accused of having committed,” Maweu said.
In his judgement, Odunga said he was satisfied with the new evidence brought before him, and that it was perceived as not a lie, but only as a mouthpiece of a lie.
“What should the court do when evidence is placed on its laps and was not introduced in the original trial? Should the court close its eyes to new and compelling evidence presented?” posed Odunga.
He said the court should not abet injustice or be seen as an accomplice in abetting injustice.
“Justice must be conducted in a manner that is fair. A prosecution witness testified on oath that evidence was extracted through coercion by her mother and the police in order to pave way for their mother to access the property. Injustice is glaring and smiling in defiance of justice,” Odunga said.
Mwende, who attended the session, broke into tears of joy after the court freed her father.
“I’m so happy that I can finally find some peace of mind. The many years my father has been in jail have been full of guilt and self-hate,” she told journalists.