- Patrick Ndungu will serve the sentence after his second appeal at the Court of Appeal flopped.
- He will also serve a 10-year jailterm for raping MGN twice.
On the evening of December 22, 2009, a businesswoman codenamed MGN was on her way home from Muthurwa market when a man well-known to her and her family assaulted her.
It was about 8 pm and MGN had alighted at Maziwa stage in Kasarani, when she saw someone who appeared drunk, staggering and falling.
The person ordered her to go to him but scared and screaming, she ran away towards her home but the man pursued and caught up with her.
The man, who she recognised as Patrick Ndungu Kariuki, held her by the neck and produced a knife which he threatened to kill her with if she continued screaming.
Afraid for her life, MGN kept quiet.
Ndungu took the opportunity to pull her into a nearby maize plantation and demanded that she surrender her money and cell phone.
MGN however told him she only had Sh150 as she had come from the hospital, and gave him the money.
He then proceeded to demand sex but in an attempt to save herself from such, the woman said she was HIV positive.
Ndungu however disputed this, saying he knew her and her husband very well to know she was not sick.
Satisfied with his deductions, he tried to pull down her pants but she resisted forcing him to tear them and proceed to rape her.
At some point during the act, MGN complained that she was tired and the man got off her.
He sat next to her and started chatting her up, seeming to let her rest before he assaulted her again.
This time, he claimed that he was not satisfied with the initial act.
As this was happening, Ndungu was telling MGN how much he always wanted to have sex with her and how the urge came up every time he saw her.
After the assault, he snatched her purse which had Sh3,000, a pair of socks, a CD, a blouse, and her identity card then ran away.
MGN tried to pursue him but gave up when the man crossed a river.
She went to her aunt's house and told her what had happened before she called her husband.
When her husband came, they went to the scene where they picked up the torn panty she had left behind then went to Nairobi Women's Hospital.
On the following day at around 5 am, the couple made a report at Kiamumbi Police Station and MGN led officers to Ndungu's arrest at a construction site.
He was charged and remanded in custody for one year, before being discharged under section 87(a) of the Criminal Procedure Code.
Ndungu was later re-arrested and taken to the same police station and arraigned in court on instant charges.
He was presented before the Chief Magistrate's court at Kiambu and charged with robbery with violence and rape.
MGN's evidence was corroborated by that of one Edward Gitonga Kariuki, who recalled that on the material night, he heard a scream about 30 metres from his house.
He however did not go out to check till morning when he visited his farm and found a disturbed scene.
Gitonga said a woman came and told him that she had been raped at the scene and this made him record a statement at Kiamumbi police station.
MGN also testified that she had recognised Ndungu with the help of lights from passing vehicles and also by his voice.
The woman's husband and Ndungu were friends who used to share drinks and would bump into each other almost daily when going to work.
The husband had known him for about 10 years.
In his defence, Ndungu said he was a mason and had been arrested while on duty by people who came asking for a plan for the house under construction.
He told them that the plan was with the owner and they told him to call them in person.
The court heard that when he hesitated they arrested him and took him to Kiamumbi police station.
The trial court found him guilty of the charges, convicted him and sentenced him to death in respect to robbery with violence.
He was handed a ten-year jail term for rape.
It was ordered that the second sentence be held in abeyance pending the execution of the first sentence.
An abeyance is a temporary suspension of an activity while awaiting the resolution of some other proceeding.
Ndungu appealed the conviction and sentence in the High Court and after its consideration, the first appellate court dismissed the appeal and upheld the judgment of the trial court.
He proceeded to make the second appeal at the Court of Appeal blaming the High Court for finding that the prosecution had proved the ingredients of the main counts preferred.
He argued that the sentences were too harsh and excessive in the circumstances as he was a first offender.
Ndungu sought to have the appeal allowed and the convictions and sentences imposed on him set aside.
He claimed at no point did MGN talk of him being violent during the theft.
The court however said other than him threatening his victim with a knife, the act of raping her was in itself a violent act.
On the issue of the sentence, appellate judges Asike-Makhandia, Agnes Murgor and Sankale Ole Kantai noted that the death sentence is still lawful in Kenya and may be imposed where circumstances so deserve.
"Having said as much, we are not convinced that the appellant’s submissions on the sentence are noteworthy. We accordingly find nothing that can cause us to disturb the judgment of the 1st appellate court in its entirety," the judgment delivered on September 22, reads.
"The appeal on both conviction and sentence is in the premises dismissed."