By WAHOME THUKU

KENYA: The case of Ms Eunice Musenya Ndui is one that every parent may want to read at this point when children, especially teenagers, are on school holidays and actively socialising with people of different calibre.

Sometime in 2005, Ms Ndui, a resident of Kitui town, met a man by the name Musyoka who told her he came from Mwingi but worked in Nairobi.

The two became friends, something that Ndui may live to regret for the rest of her life.

According to her, on November 30, 2005 she went to work in the morning and returned home at 4pm.

At 5pm, she went to have her shoe repaired at a nearby bus stage.

While there, Musyoka came by carrying a carton and requested her to accompany him to Kalawa Secondary School to see his brother.

She resisted but the man convinced her that they would take a taxi. Ndui carried that carton to the taxi bay though she did not know what it contained.

Perhaps unknown to Ms Ndui, Musyoka was armed with a pistol.

Musyoka hired a taxi owned and operated by one Japhet Kimanzi.

He told Kimanzi that they wanted to travel to Chuluni and settled for Sh300 as the charges. To ensure his security and out of experience, Kimanzi asked another friend Lee Morgan to accompany them. 

In the car, Musyoka sat in front while Ndui and Morgan sat at the back.

As they approached Chuluni, Musyoka directed the driver to change direction and head to Changwithya Secondary School on the opposite direction.

At Nzeu Bridge, Musyoka pulled out a pistol, pointed it at the driver’s head and ordered him to stop.

He stopped the car on the road. Two other men appeared from the roadside and attempted to open the door. Luckily, a police car appeared from the opposite direction and they panicked. The men engaged the police in a brief shootout.

Musyoka and the other two men managed to escape but Ms Ndui could not get out of the car and she was arrested. That was around 7pm.

Soil and charcoal

On opening the carton, police found paper bags, charcoal and soil.

The carton was only used to convince the taxi driver that the man and woman were genuine passengers.

Soon after Ndui was arraigned before Kitui Principal Magistrate charged with attempted robbery with violence.

The taxi driver, Morgan, and the police officers were called as witnesses. Ms Ndui narrated her story on her relationship with Musyoka.

She told the court that on reaching the bridge they found so many people standing on the road blocking the car.

At that point the police car arrived and a shootout ensued. Musyoka and the rest escaped but she could not run away because she was scared and she was arrested.

She claimed she did not know anything about the intended robbery.

On June 8, 2006, after a full trial she was convicted and sentenced to death, which was commuted to life imprisonment by the President.

She filed an appeal at the Machakos High Court, which was heard by judges Isaac Lenaola and Mohamed Warsame and dismissed on June 23, 2010.

The judges observed that Ndui knew about the intended robbery, that she and the other three had planned and designed with common intention and knowledge to commit the robbery and that she had the guilty knowledge at the time she boarded the taxi.

They held that the evidence against her was credible and cogent.

Ndui filed an appeal at the Court of Appeal in Nairobi through lawyer Elvis Obok.

She argued that she was not involved in a common plan or design to commit the robbery and that she had only found herself in the company of a criminal.

Obok submitted that no weapon was recovered on her and she did not make any attempt to escape because she knew she was innocent.

Calmly seated

She had been arrested when calmly seated in the car. The lawyer argued that his client only realised the carton contained rubbish when it was opened by the police and did not participate in any way in the actual attempt to rob the driver.

The State maintained that the conviction was proper. Ndui knew her colleagues were robbers, her conduct was inconsistent with innocence as she was involved in hiring the taxi and carrying the carton to the car.

The only reason why she could not escape was because the doors were locked and she was too scared to leave the car after the shootout.

Her role was part of a common intention to commit the robbery.

The only evidence used to incriminate Ndui was that she had carried the carton to the taxi and that she had remained in the car after the shootout because the doors were locked and she was too scared to escape.

The judges felt the two courts below did not consider the explanation given by Ndui yet it was not upon her to explain anything.

“The appellant had no burden to discharge and a plausible explanation of her circumstances should have been sufficient in law,” the Court of Appeal held.

The judges considered her evidence and concluded that the robbery must have been planned by Musyoka and others long before her involvement at the bus stage.

“The fact that she was not able to escape and was eventually found in a calm mood inside the vehicle is not necessarily consistent with her guilt, taking into account her explanation that she was in a state of shock.”

They went on: “In real life, innocent people have been known to demonstrate incredible calmness even in the face of  hostile circumstances and consequently her sitting in the car was not consistent with guilt.

The judges noted that there was no evidence on record that she was instrumental in the planning or design of the crime prior to the meeting with the gunman at the bus stage.

They said if the two lower courts had properly evaluated the evidence and also fully considered the defence it is possible they could have reached a different conclusion.

The judges acknowledged that carrying the carton to the car and remaining calm inside after the shootout were not proof of guilt.

“If there was a common intention between the appellant and the gunman it was to travel to Chuluni and the appellant did not appear to have any knowledge of the pre-arranged plan,” they noted.

The court concluded that the conviction was based on misapprehension of the law and failure by the two lower courts to give Ndui’s defence its rightful place.

On October 14, 2011 the conviction was set aside and the sentence quashed.  After six years in prison, Ndui was set free.