• Judge noted that it was not a fair trial because the key the witness, who is also the complainant, never took oath before her testimony.
• Trial court ruled that the action of the accused of deleting the sex tape they made was an expression of guilt.
Two rugby players who were sentenced to 15 years imprisonment for rape have been released after the High Court quashed their sentence on technicality.
Alex Alaba and Frank Wanyama who have been in prison for 10 months will now be detained at Kilimani police station as they await plea taking before a different magistrate.
In her ruling, Justice Ngenye Macharia ordered for a retrial, ruling that there was no evidence shown to court that one witness who testified against the two was ever sworn.
Chief Magistrate Martha Mutuku had found them guilty and sentenced them to 15 years in jail.
However, Ngenye noted that it was not a fair trial because the key the witness, who is also the complainant, never took oath before her testimony.
It is a prerequisite for all witnesses to take oath before testifying in any case before court.
The two players were charged in 2018 with the rape of the female musician.
The former Kenya Harlequin FC players are accused of gang rapping the singer overnight on her birthday at Seefar Apartments in Highrise, Nairobi, on February 10 that year.
Mutuku read the judgment in camera and in her ruling she went with the victims’ version of events.
In her judgment, Mutuku ruled that no one was present at the house except for the three of them and the action of the accused of deleting the sex tape they made was an expression of guilt.
In mitigation, they had pleaded with the court for a non-custodial sentence saying they had realised their mistakes and the victim was older than they were.
However, Mutuku ruled that some offences have a mandatory sentence and gave them the minimum 15 years' jail term.
They challenged the outcome saying the magistrate erred in law in convicting and sentencing them.
They will take the plea on July 7 when that court will determine if they will be released on bail.
Edited by R.Wamochie