Convicted Kenya 7s players lose bid to suspend rape case retrial

Frank Wanyama (right) and Alex Olaba (left) at the Milimani Courts in Nairobi on December 2, 2020.

Photo credit: Richard Munguti | Nation Media Group

What you need to know:

  • Wanyama and Olaba, through their lawyer Pravin Bowry, had opposed their retrial saying their rights were prejudiced BY comments made by Justice Macharia when she quashed the 15 year jail term imposed on each of them on August 16, 2019.
  • The two were convicted for gang-raping a musician on February 10, 2018 at a house party at Seefar apartments in Nyayo Highrise Nairobi.

Two rugby players, Frank Wanyama and Alex Olaba, have lost a bid to suspend the retrial of the gang-rape case against them.

Following the dismissal of their application to stay (suspend) their retrial as directed by the High Court in June 2020, Senior Resident Magistrate, Ms Zainab Abdul, fixed the case for hearing on February 26, 2021.

Ms Abdul said she had no jurisdiction to grant the wishes sought by Wanyama and Olaba to be retried.

She said the two accused persons have not obtained an order from the high court staying the rape case.

“In the absence of a high court staying these proceedings, this court lacks jurisdiction to grant the prayers sought. I therefore direct the rape case to proceed,” Ms Abdul ruled.

She upheld the objection by the Director of Public Prosecutions through a state prosecutor Everlyn Onunga that a magistrate’s court cannot overrule directions of the high court.

Wanyama and Olaba, through their lawyer Pravin Bowry, had opposed their retrial saying their rights were prejudiced BY comments made by Justice Macharia when she quashed the 15 year jail term imposed on each of them on August 16, 2019.

The two were convicted for gang-raping a musician on February 10, 2018 at a house party at Seefar apartments in Nyayo Highrise Nairobi.

Mr Bowry had stated that in light of the comments by judge, the accused would not get a fair hearing.

“I urge this matter be referred to the high court for hearing and determination of an alleged abuse of the court process and gross violation of the applicants rights to fair trial contrary to the previsions of Article 50(2)(a) of the Constitution of Kenya,” Mr Bowry stated.

Mr Bowry said the judge commented on the substance of the evidence that supports the charges against the accused and “is therefore an abuse of the process of the court.”

In her objection, Ms Onunga said Justice Macharia based her judgement on a technicality when she ordered a retrial.

She added that the accused cannot “reap the benefit of their appeal and at the same time challenge the benefits they have gained from.”

She asked the court to dismiss the application for stay of the rape case, saying it’s a move to terminate their trial.

On November 19, 2020, the magistrate declined to stay the trial pending the outcome of an appeal lodged at the Court of Appeal on the order for retrial.

rmunguti@ke.nationmedia.com

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