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Rugby player Frank Wanyama sues CJ Martha Koome over 'unfair tape trial'

 

Rugby players Alex Olaba and Frank Wanyama in the dock at a Milimani court Nairobi where they were jailed for 15 years each for gang-rape. [File, Standard]

Rugby player Frank Wanyama has sued Chief Justice Martha Koome over claims of miscarriage of justice in a case where he is accused of gang rape.

Wanyama alleges that to date, he has not received a full record of the High Court trial to enable him to appeal. 

He argues that the Judiciary’s ombudsperson allegedly informed him that the original record at the High Court had been tampered with. 

Wanyama has also sued the Court of Appeal president, the presiding judge Milimani Court, the Chief Magistrate Court and the Attorney General.

He argues that it is impossible for him to get justice in his appeal.

“This is a clear indication that it is impossible for the petitioner to be accorded a fair hearing in his appeal at the Court of Appeal,” he argues in his case filed before High Court Judge Lawrence Mugambi.

Wanyama was charged with gang rape alongside Alex Olaba in 2018. A year later, Chief Magistrate Martha Mutuku sentenced the two to 15 years imprisonment.

Aggrieved, the two appealed before Justice Ngenye Macharia (now a Court of Appeal Judge).

Justice Macharia ordered that the criminal case should be heard afresh as it was a mistrial.

Wanyama claims that despite Justice Macharia finding that the lower court had blundered, she went ahead to imply that he alongside Olaba had engaged in unconsensual sex with the victim.

The two then took fresh plea before the magistrate’s court and were released on a Sh300,000 cash bail or Sh500,000 bond on July 7, 2020.

He narrates that five days after answering to the charges, he lodged an appeal against the High Court’s judgment.

Wanyama states that to date he has not been able to prosecute his appeal due to lack of the full record of the High Court trial. 

On July 21, 2020, he says, his lawyer Pravin Bowry asked the magistrate’s court to suspend the hearing in order to allow the Court of Appeal to hear his case.

However, he claims Senior Resident Magistrate Zainab Abdul dismissed the application. He then filed another application alleging abuse of office.

However, the application was also dismissed and the trial was set for hearing in 2021.

In the meantime, Wanyama says that he wrote to the deputy chief registrar of the Court of Appeal seeking a date for hearing of his application to suspend the hearing before the lower court.

His lawyer informed the court that he wants to change his plea to autrefios convict (a person who has been convicted over the same offence), hence cannot be jailed over it again).

Wanyama says that the court did not deliver the ruling, instead, the case was only called out when Olaba’s bail was being cancelled for threatening the victim.  Olaba is currently serving six years in jail for threats and plot to kill the witness.

The rugby player says he requested the case to be heard in camera but this too was rejected.

Wanyama submits that he received setback after setback at the Magistrate Court, High Court and Court of Appeal. 

“It is clear that at every stage of the criminal judicial process in subordinate courts, the High Court and Court of  Appeal singularly and collectively by their 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,” argues Wanyama. 

At the magistrate’s court, he points out that the magistrate decided to have the complainant testify without being sworn despite the previous judgment being dismissed on the same grounds.

At the same time, he claims that he was denied to produce evidence that would counter the evidence by the state and was denied an opportunity to be heard in camera.

Before the High Court, Wanyama says that Justice Macharia pre-empted the second trial.  According to him, the judgments of higher courts are binding to the lowers, hence, the verdict by Justice Macharia will just be repeated at the lower court.

Justice Mugambi directed that he serves the court papers and appear before him on March 12, 2024.

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