Rape charges: Frank Wanyama wants trial stopped over High Court ‘negligence’
Frank Wanyama (right) and Alex Olaba at the Milimani Law Courts on August 16, 2019.
A former international rugby player facing charges of rape has accused the judicial officers of neglect of duty for delaying the hearing of his appeal three years after filing a notice.
Mr Frank Lawrence Wanyama had initially been found guilty of gang rape together with Alex Olaba only for the judgment to be declared a mistrial and the hearing ordered to start afresh.
Mr Wanyama now says he is unable to lodge his appeal because of dereliction of duty by judicial officers.
Three years after lodging a notice at the Court of Appeal, Mr Wanyama says he could not get the record of appeal and at one point, the Judiciary Ombudsman admitted that the High Court file had been interfered with.
“Based on the foregoing it is imperative that this matter is heard as a matter of urgency in order to remedy the past abuses of the legal process and to put a stop to further abuses related to the fundamental rights and freedoms of the petitioner,” Mr Wanyama said in the petition.
Justice Lawrence Mugambi directed Chief Justice Martha Koome, the president of the Court of Appeal Daniel Musinga and the presiding judge of the criminal division of the High Court, Milimani, among others to file their replies to the petition within 14 days.
The petition will be mentioned on March 3 for directions.
The two former Kenya Sevens rugby players were charged with gang raping the woman in February 2018. They had been found guilty and sentenced to 15 years each on August 16, 2019.
However, the conviction and the sentence were quashed by then High Court judge Grace Ngenye Macharia who declared it a mistrial because the complainant was not sworn when she gave her evidence.
Through his lawyer, senior counsel Pravin Bowry, Mr Wanyama filed a notice of appeal at the Court of Appeal on July 13, 2020, and requested for typed proceedings of the High Court decision.
“The petitioner has to date not been able to advance his appeal at the Court of Appeal. Despite filing the Notice of Appeal on July 13, 2020, over three years later the record has not been prepared,” Mr Bowry said.
When the matter came up before the trial magistrate for a fresh hearing, he informed the court that he had filed a notice of appeal against the judgment and was preparing to file an application to suspend the trial, pending the determination of the appeal. The application was dismissed.
He said he wrote to the office of the Judiciary Ombudsman requesting for intervention at the Court of Appeal as well as the preparation of the record of appeal by the High Court.
Later the ombudsman responded stating that the file in respect to the High Court criminal case was lost and there were efforts to trace it.
A follow-up revealed that the file was tampered with and the original record cannot be traced, he said. “This is a clear indication that it is now impossible for the petitioner to be accorded a fair hearing of his appeal,” he said.
He said all his efforts to ensure that his constitutional rights are protected have been frustrated.
“From the foregoing, it is clear that at every stage of the criminal process in the subordinate courts, the High Court and Court of Appeal singularly and collectively by their conduct and the conduct of their inefficient and creaking administrative machinery has created a multitude of legal scenarios where the petitioner has not and cannot ever get a fair trial,” Mr Bowry said.
Frank Wanyama (right) and Alex Olaba (left) at the Milimani Courts in Nairobi on December 2, 2020.
The senior counsel said the delays in preparation of the record of appeal by the High Court criminal division, the alleged tampering of the High Court Appeal file and the hearing of the Court of Appeal application has resulted in erosion of the petitioners’ right of appeal.
He further accused the trial court of barring him from adducing and challenging the court’s decision to hold the trial in camera, despite an application opposing the same.
Mr Bowry said although the court ordered a mistrial, Justice Ngenye took away the presumption of innocence by finding that the sex was not consensual, a finding which he said is a determination of guilt.
He wants the trial permanently stopped to avoid further abuse of the legal process and a declaration that the trial pending before a magistrate is null and void.
“A declaration that the inefficiency, negligence and disorganisation of the High Court of Kenya and the administrative staff thereof has resulted in the violation of the fundamental rights and freedoms of the petitioner guaranteed under Articles 50 (2).
Mr Wanyama will also be asking the court to order an investigation into alleged tampering with the High Court file.
