The Court of Appeal has put on hold the sexual assault prosecution of former rugby players, Frank Wanyama and Alex Olaba, until the determination of their appeal.
The appeal challenges the admissibility of the complainant’s evidence since she gave it without taking an oath in court.
The High Court quashed the duo’s 15-year jail term and ordered for a fresh trial instead of releasing them.
The magistrate court had sentenced them to 15 years imprisonment each for sexually assaulting a woman on February 11, 2018, at Seefa Apartments in Highrise, Nairobi.
However, the victim gave unsworn evidence in the trial court, rendering the trial defective and a nullity.
Justice Ngenye Macharia quashed the sentence and ordered a fresh trial.
Evidence in criminal trials is required to be taken on oath, with the only exception being in the case of a child of tender age who does not understand the nature of the oath.
According to Section 151 of the Criminal Procedure Code, evidence in criminal cases must be taken under oath, and unsworn evidence is completely prohibited.
This means that every witness who appears in a criminal cause or matter must be examined under oath, and the court where the witness appears has the right to administer the customary oath.
The section enforces the requirement that evidence in criminal cases must be given under oath to ensure the accuracy and truthfulness of the testimony presented before the court.
Several superior court authorities have stated that unsworn statements have no probative value, and thus the rules of evidence cannot be applied to them. In a case presided over by Justice Macharia, he held that the accused persons had been convicted based on an unsworn statement, which is a violation of Section 151 of the Criminal Procedure Code.
According to Justice Macharia, it is possible that the witness was sworn before testifying, but the record suggests otherwise, rendering the conviction faulty.
Since the veracity of the evidence is in question, the proceedings constitute a total mistrial.
As a result, the judge quashed the conviction, set aside the sentences, and ordered a retrial, which took place on July 7, 2020, after the accused had appeared before a magistrate and pleaded guilty.
However, the defendants were unhappy with the ruling and appealed to the Court of Appeal.
A three-judge bench, consisting of Justices Agnes Murgor, Sankale Ole Kantai, and Mwaniki Gachoka, ordered a stay of the fresh trial and further hearing and determination of the case, stating that the appeal touched on constitutional issues, issues of criminal procedure, and the law of evidence.
The judges claimed that the appeal was arguable, not frivolous, and that a stay order was necessary to prevent the appeal from being rendered nugatory.
The accused argued that the High Court judge had pre-empted the decision of the trial court conducting the retrial by ruling on the substance of the evidence and making definitive findings.
According to the accused, the High Court relied on the unsworn testimony of the complainant to reach an erroneous conclusion that the sexual intercourse between the accused and complainant was non-consensual, even though the High Court had previously held that the complainant was not sworn and that the proceedings before the Magistrate amounted to a mistrial.
The accused argued that their appeal will be meaningless if a retrial is conducted, as the same mistakes will be repeated, resulting in further injustice to them.
The accused proposed to argue in their appeal that the High Court Judge erred in law by adjudicating a matter that she had ordered to be retried.
They also contend that the High Court acted unlawfully by trying the appellants when it was “functus officio,” thereby usurping the powers of the subordinate court.
Furthermore, the accused claim that the trial magistrate made a grave error of justice by not swearing in the complainant and relying on unsworn evidence.
The accused also argued that the trial magistrate erred in admitting and relying on a generic Victim Impact Statement that was prepared and signed by a person who was not the victim, as provided under the Victims Protection Act, No. 17 of 2014, making the sentence illegal and unlawful.
However, the Prosecution, through State Counsel Solomon Kimathi Njeru, requested the appellate court to dismiss the stay application, stating that the High Court did not make any factual or legal errors in ordering a retrial.
According to Mr. Muriithi, the High Court made a well-considered decision to order a retrial, taking into account all relevant factors.
The accused are facing a serious charge, and therefore, it is appropriate that they face trial.
Additionally, Mr. Muriithi noted that the witnesses are prepared to testify in the case.