Former Kenya Sevens player Alex Olaba, to face a concurrent six year jail sentence for threatening to kill the key witness in a rape case and interfering with the judicial process.
The trial Magistrate Geoffrey Onsarigo slapped Olaba with the sentence after finding him guilty of attempted murder of the key witness in the pending case in which he is charged alongside former Kenya Rugby Seven player Frank Wanyama over gang rape.
The judge in his sentense yesterday said that the accused was remorseful and promised not to repeat a similar offence in the future and that the sentence is to act like a punishment for him and a lesson to anyone who intends to commit similar offences
“Although the accused person is remorseful the offences he faces are serious. l convict and sentence him to serve six years in count one of conspiracy to kill and two years imprisonment in the second account of interference with judicial process. The sentences will run concurrently,” the magistrate said.
Olaba was jailed after he was found guilty of hatching a plan to kill the key prosecution witnesses in his rape case.
“After evaluating the recorded evidence, l find the prosecution has proven the case against the accused beyond reasonable doubt. I therefore convict him accordingly,” the magistrate stated in his judgement.
During the hearing of the case, the prosecution witnesses including investigating officer George Otieno told the court that Olaba made several attempts, directly and indirectly, to contact a State witness in the gang-rape case with intention of interfering with his trial.
Earlier on this month, the Court of Appeal had suspended the prosecution of former rugby players Frank Wanyama and Alex Olaba over sexual assault pending determination of their case that concerns admissibility of the complainant’s evidence as she testified without taking oath in court.
They had been sentenced to 15 years imprisonment each by a magistrate court after being found guilty of sexually assaulting a woman on February 11, 2018 at Seefa Apartments in Highrise, Nairobi.
Dissatisfied with both the conviction and sentence, the former Kenya Sevens players filed a first appeal at the High Court and Justice Ngenye Macharia, now a judge of the Court of Appeal, suspnded the ruling after finding that there was a mistrial.
This is because the victim of the alleged assault, who testified as the first prosecution witness, gave unsworn evidence at the trial court. The move rendered the trial null and Justice Macharia ordered for fresh trial.
The record of proceedings, both written and typed, indicated that the complainant was not sworn when she gave her evidence as evidence in criminal trials is required to be taken on oath, with the only exception being in the circumstances of a child of tender age, who does not understand the nature of the oath.
Section 151 of the Criminal Procedure Code also requires taking of evidence in criminal cases on oath and imposes a total bar to unsworn evidence which provides that “Every witness in a criminal cause or matter shall be examined upon oath, ”
Justice Macharia held that the accused persons were convicted on the basis of an unsworn testimony, in violation of Section 151 of the Criminal Procedure Code.
“It may probably be that PW1 was sworn before she testified. But as the record shows, she may not have been sworn rendering to a faulty conviction. The rationale for this is because the veracity of the evidence adduced is put in question. For this reason, I would not hesitate to hold that the proceedings were a total mistrial,” said Justice Macharia.
In the judgement dated June 30, 2020 the judge quashed the conviction, set aside the sentences and ordered that a retrial be conducted. They appeared before a magistrate on July 7, 2020 and took plea again and were granted bail ahead of the fresh trial.