What you need to know:
- The two were handed the sentence of 15 years in jail each by Ms Mutuku 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 Kenyan rugby players have challenged the gang rape case against them claiming they will not get justice following a comment by a judge, who ordered their retrial after quashing a 15 year jail term handed down to them last August.
Frank Wanyama and Alex Olaba, through the lawyer Pravin Bowry, Wednesday urged Senior Resident Magistrate Ms Zainab Abdul to stay (suspend) their re-trial then refer the case to the High Court for a determination on whether they will get a fair hearing or not.
The duo said their move arises from a comment made by Lady Justice Ngenye Macharia when she ordered their retrial on June 30, 2020.
The two were sentenced to 15 years in jail each by Chief Magistrate Martha Mutuku on August 16, 2019 after they were found guilty of for gang-raping a musician on February 10, 2018 at a house party at Seefar apartments in Nyayo Highrise Nairobi.
The accused said they are apprehensive their rights to a fair hearing will be compromised if the case is allowed to proceed.
“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 provisions of Article 50(2)(a) of the Constitution of Kenya,” Mr Bowry told the court on Wednesday.
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.”
He said the comment of the judge violates the accused rights of being presumed innocent until the contrary is proved.
Mr Bowry informed the magistrate that she has jurisdiction to refer the application for redress at the high court.
In supporting his argument, Mr Bowry quoted a section of the judgement where Justice Macharia stated, “What I have no doubt in my mind with is the fact that the evidence discloses that the intercourse was not consensual.”
He said the high court has pre-empted the trial before the magistrate court.
Mr Bowry said it is unfair and unjustly oppressive to the accused and undermines the integrity of the judicial process to proceed with the re-trial of a matter where the high court has ruled on the substance of the evidence to be presented before the trial court.
Mr Bowry said those comments amount to judicial misconduct. “We are contenting there was misconduct on the part of the judge.
“This is not a wild shot in the air, neither is the application frivolous nor vexatious but applies to a weighty constitutional matter,” Mr Bowry stated.
But the Prosecution opposed the application saying, 'it’s a waste of judicial time and a delay of the case'.
State Prosecutor Ms Evelyne Onunga defended the judge saying she made a decision after evaluating the evidence presented before her in the 17 grounds raised by the accused persons in their consolidated appeals.
The prosecutor said the accused won’t suffer prejudice as fresh evidence will be led in the case before a different magistrate and not chief magistrate Martha Mutuku who jailed them.
She said there is no court of appeal order staying the re-trial of the rape case.
Ms Onunga said Articles 23 and 165 of the Constitution vest the high court with jurisdiction to determine applications placed before it on denial and violations of fundamental rights.
She said the accused have used an unknown procedure to mitigate their course which should be rejected.
She said the magistrate is bound by the decision of the high and cannot oust it by staying (suspending) the rape 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.
Ms Abdul will determine whether to suspend the case or not on December 15, 2020.