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Former rugby star Frank Wanyama’s bid to stop rape case fails
Rugby player Frank Wanyama at Milimani Law Nairobi on Friday, July 12, 2019.
A former international rugby player has suffered a blow after the High Court dismissed his petition seeking to permanently stop a rape charge against him.
Frank Lawrence Wanyama wanted his trial stopped, accusing the judiciary of denying him justice by delaying his appeal for more than three years.
Wanyama had initially been found guilty of gang-rape together with Alex Olaba, only for the High Court to declare the case a mistrial and order a fresh hearing.
He appealed against the decision but said he was unable to proceed with the hearing because of the dereliction of duty by judicial officers.
The former rugby star had complained that three years after lodging a notice at the Court of Appeal, he was yet to get the record of appeal to enable him purse the matter.
Former rugby player Frank Wanyama at Milimani Law Nairobi in this picture taken on July 12, 2019.
He also claimed that at one point, the Judiciary Ombudsman admitted that the High Court file had been interfered with.
The High Court, however, dismissed the petition, stating that he was asking the constitutional and human rights division of the court to supervise the criminal division, yet they were parallel courts.
“In my considered view, the Petitioner’s recourse, if dissatisfied, lies not in filing a direct or fresh suit before this Court, but in applying for a review before the same Court or appealing to the Court of Appeal. Courts are the guardians of the Constitution but are also bound by the same Constitution in equal measure,” said the court.
The two former Kenya Sevens rugby players were charged with gang raping the woman in February 2018. They had been found guilty and sentenced to 15 years each on August 16, 2019.
However, the conviction and the sentence were quashed by the High Court declaring the case a mistrial because the complainant was not sworn when she gave her evidence.
Mr Wanyama said he filed a notice of appeal at the Court of Appeal on July 13, 2020 and requested typed proceedings of the High Court decision.
Years down the line, he was yet to get the record of appeal, forcing him to file the petition.
Mr Wanyama had sued Chief Justice Martha Koome, president of the Court of Appeal Daniel Musinga and chief magistrate Milimani law courts, accusing them of frustrating his appeal and for tampering with the court file, which has ultimately impeded the appellate process and the reason why this Petition is before this Court.
He said the delay in preparation of the record of appeal by the High Court criminal division, the alleged tampering of the High Court Appeal file and the hearing of the Court of Appeal application have resulted in erosion of his right of appeal.
Frank Wanyama (right) and Alex Olaba at the Milimani Law Courts on August 16, 2019.
He further accused the trial court of barring him from adducing and challenging the court’s decision to hold the trial in camera, despite an application opposing the same.
The Judiciary filed an objection arguing Mr Wanyama was abusing the court process as he was raising the same issues contained in his appeal.
Justice Koome further said the petition was an attempt to invite the court to review the decision of the High Court Criminal Division, which is unprocedural and improper because the High Court lacks supervisory jurisdiction over other courts of concurrent and parallel jurisdiction.
The CJ also said the petition was premature and an abuse of the court process.
The court agreed, saying it lacked jurisdiction to entertain the matter since the case was determined by the High Court.
“This is because this Court, being also a High Court, cannot supervise, review, direct or interfere with the decision of another High Court division, as all are Courts of concurrent and coordinate jurisdiction under Article 165 of the Constitution,” said the court.
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