What you need to know:
- Olaba through Lawyer Cliff Oduk is asking the High Court to quash the six-year jail term for the offence to kill a witness identified as K.A and the two years jail term for defeating justice
- Olaba says the trial magistrate erred in law by ignoring or not weighing sufficiently the weighty issues raised in the evidence
Former Kenya Sevens jailed rugby player Alex Olaba has challenged a six-year-jail term imposed on him by a city court magistrate for threatening to kill a key witness in rape case against him.
Olaba through Lawyer Cliff Oduk is asking the high court to quash the six-year jail term for the offence to kill a witness identified as K.A and the two years jail term for defeating justice.
Oduk urges the High Court to find his appeal meritorious given that the complainant KA was never called to testify in court.
“The magistrate erred in law and fact in admitting and relying on a generic victim impact assessment statement, adduced as evidence yet the alleged interviewed victim KA was not part of the proceedings in the subordinate court,” says the convict in his testimony.
Olaba says he is wholly aggrieved and dissatisfied by the conviction and the sentence imposed by magistrate Geoffrey Onsarigo on May 24, 2023.
The Magistrate convicted him for the offense of threatening to kill a key witness in the rape case against him and conspiracy to defeat justice.
In the gang rape case, Olaba is charged alongside Frank Wanyama, another rugby player.
In the appeal, Olaba through Lawyer Cliff Oduk has faulted the magistrate for misapplying the law while convicting him.
“The trial magistrate erred in law and fact by failing to consider that the alleged victim K.A neither recorded a victim nor was she a victim before the trial court,” Oduk says in the petition of appeal.
The convict has also faulted the magistrate for failing to consider that no specific evidence was adduced in regard to the nature, time, manner and place that the alleged victim would be killed.
Olaba states in the appeal that the trial magistrate erred in law by ignoring and failing to weigh sufficiently the weighty issues raised in his defence statement.
He also faults the court for not judiciously appreciating the inconsistencies and contradictory evidence of prosecution witnesses.
Olaba further faults the magistrate for not considering numerous untruths that were told by the prosecution witnesses.
He further claims the witnesses were cunning, unreliable, evasive, forgetful and contradictory on material aspects.
The appellate court has been informed by Oduk that “no specific evidence was adduced in regards to the bank account and receipt in respect of the alleged Sh10,000 intended to be used to hire a hitman.”
Olaba says the prosecution did not adduce any testimony to counter his defence.
Also the convict has torn into the conduct of the trial magistrate whom he has accused of not recording the court proceedings tendered in court correctly.
“The trial magistrate erred in law and fact in relying and admitting entrapment evidence to convict and sentence the rugby star,” says Oduk in the petition.
The convict alleges the court erred by making a finding on the charges of conspiracy to murder yet the prosecution failed to prove the ingredients of the offence as required and provided for in Section 224 of the Penal Code Chapter 63 Laws of Kenya.
Also the court has been informed the trial magistrate Mr Onsarigo did not factor his mitigation.
Olaba says the magistrate relied on testimony of persons who were not called as witnesses yet he relied on their evidence.
“The magistrate failed to consider that individuals (like Kenya One and Fathee) were not witnesses hence convicting him (Olaba) on such evidence was unfair and unjust,” lawyer Oduk explains in the petition.
Oduk says Olaba was jailed on extraneous circumstances. The prosecution never availed any evidence to show Olaba communicated with the alleged victim KA.
“I hereby urge that the conviction by Onsarigo be set aside and the sentence of a jail term of six years be quashed,” prays lawyer Oduk in the petition of appeal.