NAIROBI: Jackline Atieno* (not her real name), a former waitress at a Nairobi restaurant was walking home on the night of April 17, 2007 after a busy day at work when she spotted a masculine figure following her from a distance.
It was a few minutes past 11pm and the route leading to her house in Kayole was virtually deserted.
A sudden fear gripped her and she quickened her pace before breaking into a frantic run. For the umpteenth time, she rued the day she moved to the insecure estate at the beginning of the year but quickly reminded herself that it was out of desperation because that was the only available place of residence she got after landing a job on short notice.
Many times she had enlisted the escort of Maasai night guards to accompany her home but tonight they had politely declined assuring her that they had already patrolled the area and ascertained it was safe.
Her mind was so engulfed in dread that she momentarily lost her way in the darkness, stumbled and fell. Her pursuer, within no time, pounced on her and forcefully dragged her into an incomplete building nearby.
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What followed next was a terrifying brutal rape ordeal that went on for hours leaving Jackline, then 26-years-old, deeply traumatised using whatever little strength she had to seek medical attention and alert police.
About two months later, police raided the home of one Dennis Loishiye after a night guard, who used to accompany Jackline, led them to him saying he fit the rape suspect’s description.
Loishiye was arrested and brought before the Principal Magistrate’s Court in Nairobi charged with rape.
During cross examination of the investigating officer, a female police constable, it emerged that there had been another suspect but he was freed and turned into a prosecution witness after the complainant pointed out Loishiye as the assailant.
“He has since gone to Tanzania and cannot be traced,” the officer responded, when Loishiye’s lawyer sought to know why the other suspect did not testify in court.
On June 22, 2011, Loishiye was found guilty and sentenced to 20 years in prison. He immediately moved to the High Court but this too upheld the lower court’s ruling.
At the Court of Appeal, Loishiye - who has been in custody for almost eight years, got reprieve last month when the judges quashed his conviction, set him free, and allowed his appeal.
Justices John Mwera, Jamila Mohammed and Fatuma Sichale faulted both the trial court and High Court for not respectively evaluating and re-evaluating the evidence properly.
In particular, they faulted the High Court for wrongly holding that it was the complainant, not the guard, who led police to the appellant’s house.
“Why was the Maasai guard who led police to the appellant’s house not called as a witness and how did he know it was the appellant who committed the heinous act? There is also the evidence of the other suspect who was released and treated as a prosecution witness but did not testify,” they noted.
