Court to start afresh hearing of two rugby players whose 15-year jail term sentence for rape was quashed by the High Court.
Frank Wanyama and Alex Olaba, former rugby players, were sentenced to 15 years in jail by a Magistrate court after being found guilty of sexually assaulting a woman on February 11, 2018, at Seefa Apartments in Highrise, Nairobi.
The Former Kenya Sevens players submitted a first appeal at the High Court after being dissatisfied with their conviction and the sentence.
Justice Ngenye Macharia, who at the time was a High Court Judge quashed the sentence after finding that there was a mistrial.
The Judge’s decision arrived after the victim of the alleged assault, who testified as the first prosecution witness, gave unsworn evidence at the trial court.
The move rendered the appellants’ trial defective, and a nullity and Justice Macharia ordered for a fresh trial.
The record of proceedings, both written and typed, indicated that the complainant was not sworn when she gave her evidence.
Evidence in criminal trials is required to be taken on oath, with the only exception being in the circumstances of a child of tender age, who does not understand the nature of the oath.
Section 151 of the Criminal Procedure Code also requires the taking of evidence in criminal cases on oath and imposes a total bar to unsworn evidence.
It provides that “Every witness in a criminal cause or matter shall be examined upon oath, and the Court before which any witness shall appear shall have full power and authority to administer the usual oath”.
Justice Macharia held that the accused persons were convicted based on an unsworn testimony, in violation of Section 151 of the Criminal Procedure Code.
“It may probably be that PW1 was sworn before she testified. But as the record shows, she may not have been sworn to render to a faulty conviction. The rationale for this is that the veracity of the evidence adduced is put in question. For this reason, I would not hesitate to hold that the proceedings were a total mistrial,” said Justice Macharia.
In the judgement dated June 30, 2020 the judge quashed the conviction, set aside the sentences and ordered that a retrial be conducted.
They appeared before a magistrate on July 7, 2020, took plea again, and were granted bail ahead of the fresh trial.
