Is this what you call standing by your man, no matter what? Or another Kenyan gross miscarriage of justice by the police and the Office of the Director of Public Prosecutions (ODPP?
The moment detectives found a condom laden with semen inside a ward at Mombasa’s Pandya Memorial Hospital, about 10 metres from a female kidney patient who had accused a clinical officer attending to her of rape, they believed it was a slam-dunk case and that the man in their custody was headed for a long term in prison.
The victim told several nurses that her attacker raped her using a condom and cast it away in a trash can. The tragic drama was just beginning. On Monday, August 25, 2026, FIDA, which has been vocal in seeking justice for the complainant, called a press conference in Mombasa, inviting the media to the “trial of the century”, anticipating a conviction.
On Tuesday, the accused, Dias Juma Wabwile, walked out of court a free man despite the magistrate’s own comment that the accused person most likely, raped the complainant but there was inadequate evidence to convict or prove this strong suspicion to the required standard.
The tragedy surrounding this trial begins with the fact that a medic is accused of raping his weak patient inside a hospital as he, simultaneously administers dialysis on her. But the tragedy achieves its apogee when the complainant dies before the trial starts. She did not get the opportunity to testify in court or have her evidence tested although she had recounted her story to hospital staff, including several nurses, within minutes of the alleged rape.
Advocates for the complainant were very optimistic when the Government Chemist confirmed that the DNA harvested from the semen matched the accused person’s DNA. They grew even more confident when the accused admitted bringing the semen laden condom to hospital.
Most people watching his defence dismissed the accused person's testimony as improbable and a scandalous defamation of the deceased when he told the court that on that fateful January 31, 2025, he had sex with his wife at home using protection to prevent pregnancy and carried the laden condom to hospital for disposal. There had/has never been a more ludicrous defence in living memory and especially after when the defence called the accused person’s wife to testify in his defense.
She “confirmed” that indeed they had used protection during intercourse on the same day her husband was accused of rape and that her husband transported the condom for disposal. Under cross-examination, the accused person claimed the complainant had framed him for refusing her past sexual advances, a claim his wife appeared to confirm.
The accused was acquitted inter alia after the complainant predeceased the trial and hence her account was no better than a tall tale and despite the slam-dunk evidence, sparking new questions regarding who to believe, what really transpired on January 31, 2025, and preceding days since police had alleged that the rape had persisted since October 2024.
The magistrate rightly questioned why the police did not attempt to harvest the accused person’s wife's DNA from the exterior of the used condom to test the hypothesis that indeed she and her husband had used it that morning. The alternate question is why police did not think it was crucial to harvest the complainant’s DNA from the same condom or the accused person’s DNA from his alleged victim.
The acquittal judgment suggests that the State avoided or shunned any evidence that could ruin their single- minded theory and exonerate the accused.
But the magistrate raised other weighty questions, including: How could the complainant know the accused person had a condom if it was not used on her or shown to her by the accused? The judgment further suggests there might have been consensual sex.
What if the prosecution had cast its net wider and framed more charges differently, given that sex between a medical person and a patient under his care is unethical and hardly consensual? How could there occur consensual sex with a woman in this advanced state of kidney failure when she is either sedated or nearly sedated and lethargic? Did the deceased hallucinate to dream up a story?
Still some commentators feel there was sufficient evidence to convict. This outcome calls for a fast and fresh investigation leading to a new trial of more parties. Questions to be probed include the manner and cause of the complainant’s death. Has the condom been discarded and can its chain of custody be guaranteed post-trial? Throughout the trial CCTV evidence appears not to have featured in the prosecution’s case. Why?
