A woman who sued four people including three police officers for allegedly failing to investigate a rape complaint has lost bid to be compensated Sh10 million for negligence.

High Court judge Lawrence Mugambi ruled that the rape complaint was found by the trial Court to be untruthful and its decision had not been challenged through the appellate mechanism.

The judge further questioned how secondary victimization could be possible if in the first place there was no victimization in the sense of truthful allegations of rape.

“In the overall analysis, I find that this petition lacks merit and is hereby dismissed. I make no orders as to costs,” Justice Mugambi ruled.

The woman identified as ‘MC’ and Centre for Rights Education and Awareness had sued the alleged rapist, Kevin Kipyegon and three Kahawa police officers.

She claimed the officers failed to effectively execute their due diligence obligation to investigate her rape complaint against Kipyegon.

The court heard that the officers instead focused on her conduct and implied that there was consent which hampered their objectivity to carry out effective investigations.

“The petitioners alleged that the respondents’ actions were in violation of the State’s due diligence obligation by failing to ensure the complainant’s constitutional rights were protected”, the court was told.

Documents presented in court showed that MC and Kipyegon were former classmates way back in primary school. On May 26, 2021, MC invited Kipyegon to visit her in her house at Kahawa Wendani. At the time, MC was a student at Kenyatta University.

Sipped wine

When he arrived, they did catch up on their lives after high school as they sipped wine and listened to music. MC was said to have served rice and beef for supper as they continued taking wine.

“Owing to the nationwide curfew that was in force and heavy traffic that was around Kahawa Wendani at the time, they reasoned that Kipyegon stays overnight at her place for it was getting late for him to leave for his place in Ngong,” the judgment read.

After the meal and drinks, the couple started watching a movie together during which MC is said to have fell asleep.

The woman averred that at around midnight, she was woken up by a person grabbing her and pinning her to the bed. To her surprise, it was Kipyegon who was on top of her naked and shoving his penis into her vagina. She confronted him and Kipyegon started begging for forgiveness.

Safe-keeping

Immediately she left the house and went to inform a neighbour identified as Billy what had happened. They picked her laptop for safe-keeping and then proceeded to lock the door from outside to prevent Kipyegon from escaping.

The petitioner said she reported the incident at Kahawa Wendani Police Station.

In the presence of other police officers, one officer proceeded to openly question the woman about the incident and the petitioner narrated how it had unfolded.

The court also heard that the police officer made some indifferent comments wondering what else she expected after inviting a man into her house, cooked for him, served him wine and offered him a place to sleep.

She said the officer still negatively commented that her dressing was inappropriate saying it could have led to the incident.

At some point, the officers requested her to show the phone messages she had exchanged with Kipyegon.

“They then saw one in which the respondent had referred to her as ‘baby’ but she had not responded to it. That prompted a further comment in which she was told that she was in a relationship with the 1st Respondent yet she had gone to report him for rape,” the court documents state.

Another officer commented her conduct of cooking meat for Kipyegon, serving him wine, watching a movie together and offering him a place to sleep all amounted to consent for sex.

Called ambulance

Nevertheless, the officer called an ambulance to take the woman to hospital (Medicines San Frontiers (MSF).

Getting back to the house, MC and her friend Ashley Kimberly found out that Kipyegon had escaped. They also came across a condom wrapper and put it in the same bag they had kept the underwear that MC wore at the time of the incident.

MC said she began making follow-ups on her case but no progress was being made to arrest Kipyegon.
She also deponed that at one point, Kipyegon’s family offered her family Sh70,000 so to settle the matter.

“The 1st petitioner avers that the experience in the hands of the police left her traumatized and she had to attend psychological sessions to cope,” she stated.

Kipyegon defended himself by stating that following MC’s complaint, he was arrested. He disputed the allegations of rape and was thereafter released on cash bail pending conclusion of investigations.
He deponed that on January 10, 2021, he was arraigned before the Ruiru Law Courts in Criminal Case No. E004 of 2022.

The matter was heard and concluded and he was acquitted after the Court found he had no case to answer in a ruling delivered in January 2023.

The officers argued that MC and her friend went to report the rape incident on the morning of May 26, 2021.

They explained that MC related how she had invited Kipyegon to her house the previous day and the two ate and drunk together as they watched movies. They deponed that MC said they went to bed together and that is when she realized she had been raped.

While dismissing MC’s case, the judge noted that no cross-examination was conducted to enable the witnesses clarify and explain their positions vividly despite their being variances on the material issue.

The veracity of each side’s testimony could thus not be confirmed.

Justice Mugambi said the Court was left in limbo with the two conflicting positions and is thus unable without the benefit of cross-examination to affirmatively resolve the credibility question.