Jailed ex-rugby players Frank Wanyama, Alex Olaba bank on rape victim’s oath mishap

The Court of Appeal has suspended the prosecution of former rugby players Frank Wanyama and Alex Olaba over sexual assault pending determination of their case that concerns admissibility of the complainant’s evidence as she testified without taking oath in court.

Their appeal is against the High Court’s decision to quash their 15-year jail term and order for a fresh trial, instead of releasing them.

They had been sentenced to 15 years imprisonment each by a magistrate court after being found guilty of sexually assaulting a woman on February 11, 2018 at Seefa Apartments in Highrise, Nairobi.

Dissatisfied with both the conviction and sentence, the former Kenya Sevens players filed a first appeal at the High Court and Justice Ngenye Macharia, now a judge of the Court of Appeal, quashed the sentence after finding that there was a mistrial.

This is because the victim of the alleged assault, who testified as the first prosecution witness, gave unsworn evidence at the trial court. The move rendered the trial of the appellants defective and a nullity and Justice Macharia ordered for 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 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”.  

Various authorities of the superior courts hold that an unsworn statement is not evidence and the rules of evidence cannot be applied to an unsworn statement as it has no probative value.

Justice Macharia held that the accused persons were convicted on the basis of 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 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,” 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 and took plea again and were granted bail ahead of the fresh trial.

But the accused were dissatisfied with the judgment and filed a second appeal at the Court of Appeal.

A three-judge-bench comprising justices Agnes Murgor, Sankale Ole Kantai and Mwaniki Gachoka ordered for stay of the fresh trial and further hearing and determination of the case.

The judges found that the appeal touch on constitutional issues, issues of criminal procedure and the law of evidence.They said the appeal is arguable, is not frivolous and that the same would be rendered nugatory in absence of a stay order.

The accused argued that the High Court judge pre-empted the decision of the trial court conducting the retrial by ruling on the substance of the evidence and making definitive findings.

“Whereas the High Court held that the complainant was not sworn and that the proceedings before the Magistrate amounted to a mistrial, the High Court relied on the unsworn evidence of the complainant to arrive at an erroneous finding that the complainant and the accused had sexual intercourse. Further that the same was not consensual as if the unsworn evidence of the complainant was admissible,” said the accused.

They stated that the appeal will be rendered nugatory and the retrial will result in injustice to them.

In the appeal, it is proposed to be argued that the Judge erred in law by proceeding to adjudicate in a matter she ordered to be retried. Further, that the High Court proceeded to try the appellants unlawfully when it was “functus officio” thereby usurping the powers of the subordinate court.

It is also contended that the trial magistrate erred in law by failing to swear in the complainant and relying on unsworn evidence which omission occasioned and resulted in a grave failure of justice to the appellants.

Additionally, that trial magistrate erred in admitting and relying on a generic Victim Impact Statement prepared and signed by a person who was not the victim as provided under the Victims Protection Act, No. 17 of 2014 rendering the sentence illegal and unlawful.

The Prosecution, through State Counsel Solomon Kimathi Njeru, had asked the appellate court to dismiss the stay application stating that the High Court did not make any error of fact or law in ordering a retrial.

“The High Court took all factors into consideration when ordering a retrial. The offence they are charged is a serious one and the accused should stand trial. The witnesses are ready to testify,” said Mr Muriithi.

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