The High Court has quashed Frank Wanyama and Alex Olaba Mahaga’s 15-year custodial sentence and ordered a retrial for the former rugby players who had been convicted for gang rape.
In the fresh ruling, Justice Ngenye Macharia directed that the case be heard afresh at a lower court after the High Court found out that the existing records do not show whether one of the witnesses in the case was sworn or not.
The judge directed that the two be taken to Kilimani Police station for the preparation of plea taking before July 7.
The players were accused by singer Wendy Kemunto of repeatedly sexually abusing her in their Seefar Apartment on February 10, 2018.
While sentencing the two in August last year, Milimani Chief Magistrate Martha Mutuku, said the victim was traumatised by the act.
“The complainant was traumatised hence a deterrent sentence is necessary,” she ruled.
“I will proceed to impose a minimum sentence that is provided for under the act [Sexual Offences Act], I will sentence the first accused on the first account of gang rape for 15 years imprisonment. Similarly, the second accused on the account of gang rape is equally sentenced to 15 years in prison.”
However, the Magistrate gave the duo 14 days to appeal.
The defense team had prayed for a noncustodial sentence.
“We request a non-custodial sentence as they have shown remorse. A custodial sentence will dash their dreams, ” defence lawyer Wafula Simiyu pleaded with the court.
Their lawyer also told the court that the defendant was at the time of the incident 24 years old and should have guided the players who at the time were 23 and 22 years of age.
According to Kemunto, the two sexually assaulted her as she slipped in and out of consciousness.
She went public with the incident in April 2018, in a series of Instagram posts that sent the internet into a frenzy.
“I was slipping in and out of consciousness may be due to shock but I was helpless. I couldn’t fight two men who play rugby professionally. Obviously, they were stronger hence I let them do whatever they wanted to do the whole night.
I could have reported the case to the police but I was in denial, shock, pain and exhausted. I didn’t want to report also because of the profile of one of these rugby players, ” she told the police.
On his part, Wanyama said that she (Kemunto) was trying to extort him.