By Andrew Kariuki
The High Court has dismissed a petition filed by former Kenya Sevens rugby player Frank Lawrence Wanyama, who sought to permanently stop the continuation of rape proceedings against him, ruling that the application was procedurally improper and an abuse of the court process.
In its decision, the court held that Wanyama’s recourse, if dissatisfied with earlier rulings, lay in pursuing a review before the same court or advancing his appeal before the Court of Appeal, rather than filing a fresh constitutional petition.
“The petitioner’s remedy does not lie in filing a direct or fresh suit before this court, but in applying for review before the same court or appealing to the Court of Appeal,” the court stated, adding that while courts are guardians of the Constitution, they are equally bound by it.
Wanyama had challenged the handling of his appeal process following the quashing of his earlier conviction.
He accused the Judiciary of frustrating his right of appeal, alleging delays in the preparation of the record of appeal and interference with court files.
The court, however, agreed with objections raised by the Judiciary, which argued that Wanyama was re-litigating issues already contained in his pending appeal.
It held that the Constitutional and Human Rights Division lacked jurisdiction to supervise or interfere with decisions of the High Court Criminal Division, as both are courts of concurrent jurisdiction under Article 165 of the Constitution.
“This court cannot supervise, review, direct or interfere with the decision of another High Court division,” the court ruled.
Wanyama had initially been convicted in August 2019 alongside co-accused Alex Olaba and sentenced to 15 years’ imprisonment after being found guilty of gang rape.
However, the High Court later quashed the conviction and sentence, declaring the trial a mistrial on the basis that the complainant had not been sworn when giving her testimony.
Following the declaration of a mistrial, the court ordered a fresh hearing.
Wanyama filed a notice of appeal in July 2020 and requested typed proceedings but later claimed that delays had effectively denied him the opportunity to pursue the appeal, prompting the filing of the petition.
The High Court rejected those arguments, finding that the petition was premature and improperly invited the court to exercise supervisory powers it does not possess over parallel courts.
As a result, the petition was dismissed, clearing the way for the criminal process to proceed in accordance with the earlier court orders.
