Rugby players on gang-rape charge want hearing suspended

Bernice Mbugua @BerniceMuhindi

Two rugby players who were charged afresh with gang-raping an upcoming female musician in Nairobi on April 23, 2018 have filed an application to suspend their trial. 

Lawrence Frank Wanyama and Alex Mahaga Olaba want their case referred back to the High Court for hearing and determination of an alleged abuse of the process of the court and gross violation of their right to fair trial.

They had spent about 11 months in prison before they were charged afresh.

The two played for the national team but were suspended after they were charged with the offence.

They, however, continued to play for Kenya Harlequin FC until when they were jailed.

They had been convicted and sentenced to 15 years in prison by Chief Magistrate Martha Mutuku.

However, Justice Grace Ngenye Macharia overturned the conviction saying the existing records did not show whether the complainant was sworn or not.

“It may probably be that the witness was sworn before she testified. But as the record shows, she may not have been sworn rendering to a faulty conviction. 

The rationale for this is because 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,” she ruled.

Macharia said the evidence of the prosecution and defence was that there were sexual relations between the complainant and the two accused persons on that very night.

She ruled the evidence discloses that the intercourse was not consensual.

“My view therefore, is that if a retrial is ordered the same is likely to result in a conviction.”

Through lawyer Pravin Bowry, the two yesterday claimed the High Court also ruled on the substance of the evidence that supports the charges they faced. 

Senior Principal magistrate Zainab Abdul heard that their retrial undermines the integrity of the judicial process in criminal proceedings in that the High Court’s judgement already ruled on the substance of the evidence.

The prosecution through Evelyn Onunga, however, opposed the application, saying the defence was wasting the judicial time and intended to delay the matter.

He said the High Court has powers to re-evaluate the evidence and make findings.