This archive report was first published on 1 July 2020.
On July 1, 2020, a grave mistake by the prosecution in not swearing a witness gave a lifeline to two rugby players, Alex Olaba and Frank Wanyama, who were jailed for 15 years each for gang-rape.
Justice Grace Ngenye quashed the conviction against the two former Kenya Sevens International rugby players and ordered a retrial after finding that one of the witnesses who testified against them was not sworn.
According to the criminal procedure code, a witness appearing in any court case to testify must swear by the Bible or by any other religion they profess to and declare that the evidence they shall give is the whole truth.
Justice Ngenye ruled that since the witness was not sworn, it constituted a ground for mistrial and a violation of the defendants' right to a fair trial.
Olaba and Wanyama were found guilty of raping a 25-year-old musician in August 2019 and sentenced to 15 years in jail by senior principal magistrate Martha Mutuku.
The two were university students when the rape took place during a birthday party at Seefar Apartments in Highrise, Nairobi, in February 2018.
The musician had claimed that she was attacked after the birthday party by the two men and that she could not resist the attack because they were strong.
Olaba and Wanyama denied the rape allegations, saying it was a sexual escapade that was mutually agreed between the three.
They were released from prison and taken to Kilimani Police Station where they will be processed and charged afresh on July 7.
