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Almost two years after a woman accused former Kenyan junior women’s basketball coach Philip Onyango of attempted rape inside a Nairobi hotel room, the case is back on.
Lawyers representing Onyango’s alleged victims received a letter from prosecutors on April 9 stating they have approved the ex-journalist-basketball coach’s arrest on attempted rape charges.
Now Onyango is fighting to keep himself out of police custody. He has applied to Kenya’s High Court, arguing there’s no new evidence in the case to warrant his arrest. But lawyer Eunice Lumallas, representing Joy Mupalia, Onyango’s chief accuser, told the Court that seven new women had come forward with allegations against Onyango, signaling the case has taken a more severe turn.
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Letter Authorizing Onyango’s Arrest
The arrest warrant stems from attempted rape allegations dating back to July 2021, when Onyango was accused of luring Mupalia, a former Strathmore University basketball player, into a Nairobi hotel room with promises of giving her a spot in the Kenya Ports Authority (KPA) basketball team. But when she got to Nairobi, Onyango booked them into the same room and allegedly pressured her into sleeping with him as a condition of gaining a spot in the KPA team.
Mupalia later recounted her ordeal with Onyango in a viral clip, triggering more allegations of sexual misconduct against the coach and sparking calls for his arrest and termination.
Kenya’s Directorate of Criminal Investigations (DCI) has been investigating the allegations against Onyango for almost two years and has interviewed several women, including one alleging Onyango raped her in a Mombasa hotel.
Onyango has denied the accusations.
Following the investigations, on April 09, the Office of The Director of Public Prosecutions (ODPP) released a letter clearing the way for Onyango’s arrest on charges of attempted rape.
The DPP letter, signed by Senior Principal Prosecution Counsel Joseph Mburugu and addressed to Lumallas’ law firm and the Federation of Women Lawyers in Kenya, confirmed DPP had reviewed Onyango’s case file and made a decision to arrest him on attempted rape charges.
“The file has been reviewed, and a decision to charge has been made against the accused for the offence of attempted rape contrary to section 4 of the Sexual Offence Act,” the letter from the ODPP read in part.
“By a separate letter, the OCS Kamukunji has been directed to proceed and arrest the accused person,” it added.
The ODPP was responding to Lumallas’ case update request letter dated May 8, 2023, entitled “Sexual Harassment Complaint: Philip Onyango.”
“Following the acknowledgment letter from the Deputy Director of Public Prosecution on July 6, 2022, we are yet to receive any official communication or update from your office on this matter,” the letter read partly.
“We note with great concern that we are now heading to one year since this last communication. The victims of the sexual abuse carried out by the accused are yearning for the ends of justice in this case. We highly appreciate your urgent response on the progress by your office,” the letter from Lumallas, Achieng, and Kavere Advocates read in part.
The move prompted Onyango to seek the Court’s protection from arrest.
On June 21, the Court ordered the ex-journalist-basketball coach and several others to appear on July 19 for a case hearing to determine whether Onyango should be arrested on attempted rape and sexual harassment charges.
Justice Jairus Ngaah of Milimani Court in Nairobi directed the parties to appear for a hearing, specifically on the accused’s request to stop the DPP through the police from arresting him.
After the ODPP’s directive to the OCS of Kamukunji to arrest him, Onyango, through his lawyer, Derrick Odhiambo, went to Court on May 29, 2023, seeking protection. He sought to have the Inspector General of Police (IG), the OCS Kamukunji Police Station, the Director of Public Prosecutions (DPP), the Kenya National Police Service (NPS), and the Attorney General (AG) barred from arresting him, arguing that the case had already been investigated and determined to be baseless as there was no new evidence brought against him.
In court papers, Onyango also argued that: “The accusations were investigated by Kenya Police service which included a review of CCTVS and Hotel records where the alleged offense occurred, and examinations report were all negative and no empirical evidence adduced by the alleged victim.
“The Police and ODPP investigation report absolved the Applicant, and no criminal charges were conferred on him. Further, the National Basketball Federation conducted a separate investigation and further absolved the Applicant,” he argued.
The Ad Hoc Committee appointed by the KBF to investigate allegations against Onyango, however, relied on the police report that found insufficient evidence to charge Onyango with attempted rape. The Committee report did not state whether they interviewed Onyango, his main accuser or even conduct an inquiry within the basketball fraternity to find out facts about the allegations against Onyango. The shallowness of the report makes it a weak tool for Onyango to cite as a basis for his exoneration. It’s also noteworthy that the Committee was not independent as composed of members aligned with KBF, where Onyango served in various capacities including coach, and Executive Committee member.
It’s important to note that an “insufficient” evidence finding should not be considered an exoneration or confirmation of innocence and it does not preclude further investigation or prosecution in the future. A charge can be revisited if new evidence is uncovered or prosecutors find more information to support their original charge.
The argument also does not appear to factor in the fact that the sexual misconduct acts Onyango is accused of took place inside the hotel room and may not have been captured on video. There’s also a new development in the case, with multiple new accusers coming forward and the possibility of further charges preferred from the July 2021 incident.
The basketball coach further told the Court that he was apprehensive that the decision to revive the case was not based on any new evidence but was maliciously intended to scuttle a pending Judgment case at the Employment and Labour Relations Court, where he has sued for “illegal dismissal” as the KPA’s basketball team coach.
It’s unclear whether Onyango has valid claims that he was employed as a KPA basketball coach.
In a letter dated July 7, 2021, entitled “Removal from the KPA Ladies Basketball Team,” KPA said Onyango was terminated from being a member of the KPA technical bench. And his termination was due to allegations of sexual abuse against Mupalia.
“It’s alleged that the said incident occurred while you were meeting the player for the purposes of potential recruitment to the KPA ladies basket (sic) team,” Daniel Ogutu, KPA Human Resources and Administration General Manager, said. “You’re hereby removed from being a member of the team’s technical bench with immediate effect for your inappropriate behaviour and actions.”
The Nation Media Group (NMG) also fired Onyango (NMG) from his role as a sports correspondent over the same allegations, but he we have not seen any documents showing he has sued NMG for wrongful termination.
Onyango’s Pleads With The Court to Protect Him from Arrest
In addition, Onyango pleaded with the Court to protect his freedom as “there seems to be an extraneous effort of arresting him in public to embarrass and intimidate him,” which would cause him “irreparable harm and prejudice.”
But Lumallas, answering a question from Onyango’s lawyer, explained her role in the June 21 proceedings and told the Court that seven women have come forward and filed statements with DCI investigators accusing Onyango of sexual crimes.
Judge Ngaa, however, told Lumallas the assertion was premature because the Court was still trying to determine Onyango’s application for protection from arrest.
The IG, Kamukunji OCS, NPS, and the AG opposed the summons in a response submitted in Court on June 7, 2023. Through their lawyer, Ngombi Gathenya, the state officers said they opposed the chamber summons on the grounds: ” the application is frivolous, vexatious and an abuse of court process since it does not disclose how the Respondents acted outside their mandate as provided in law.”
In addition, they said the application of Onyango to seek to summon them in Court did not “disclose any single act of illegality on the part of the respondents.”
Further, Gathenya argued that if the Court granted the orders Onyango sought in the application, it would undermine their investigatory functions and cripple the criminal justice system.
During Wednesday’s mention conducted virtually via Teams, Onyango’s lawyer Derrick Odhiambo told the Court he had filed a response to the state officials following their opposition to appear in Court. However, Ms. Gathenya, counsel for the state officials, said she had yet to receive the response and asked for 21 days to go through it and respond. The judge set the date for the hearing to be July 19, 2023.
Lumallas, representing the Kenya Federation of Women Lawyers, also applied to be included in the case between the two parties, i.e., Onyango and the state officials.
“Accordingly, it is the interest of the Federation of Women Lawyers that is interested in fighting for the rights of vulnerable women in the society such as Joy and others to ensure that alleged perpetrators face the full force of the law,” Lumallas told the Court.
“Therefore, we are interested in the matter because it is in our interest that the whole spectrum of the justice process is seen to an end, and it shouldn’t be hampered as Mr. Onyango Phillip is attempting to do through the application in your court,” Lumallas said.
To support his argument, Onyango provided documentation from KBF which relied on the police report that found insufficient evidence to charge him, but failed to interview Onyango or Mupalia.
KBF Cleared Onyango. Welcomed him Back to the “Family of Basketball.”
To boost his case, Onyango has attached several documents, including a letter from KBF Chairman Paul O. Agali, abandoning the investigation into allegations against him and a report from a KBF Ad Hoc Disciplinary Committee appointed to investigate accusations against him.
Following the July 2021 accusations against Onyango, KBF appointed a 3-person committee composed of former Moran’s Coach George Namake as Chairman and former KBF Secretary General Vitalis Gode and Morans’ Team Manager Mercine Milimu as members to investigate the allegations of attempted rape. The Committee released its report to the KBF chairman on August 11, 2021, recommending Onyango be reinstated to basketball activities in what it called ‘Reasoned advisory by the Committee.’
However, the committee report did not state whether they interviewed Mupalia or any other women accusing Onyango of sexual misconduct.
Following the committee report, KBF Chairman and Onyango’s ally, Paul O. Agali, lifted Onyango’s suspension in October 2022, more than a year after the Committee issued its report.
In the letter, Agali, a former Kenyan basketball player popularly known by his middle name, Otula, said the federation had “no further interest” in the case because Onyango was “given the clearance” by “relevant competent government authorities.”
“This Federation lifts the disciplinary action against Mr. Philip Onyango Ombajo, and he is accordingly restored to the family of Basketball,” Otula said.
Otula’s statement is generous to Onyango, an ally who vigorously campaigned for his re-election as KBF Chairman. Still, he did not provide evidence that Onyango was cleared, as no governmental body has exonerated him.
The Ad Hoc Committee report also fell short in credibility since the Committee was composed of persons aligned with KBF and could be perceived to be friendly to Onyango. For the Committee to be credible, KBF should have exercised transparency and appointed an independent panel with a mandate to interview Onyango and Mupalia.
The Committee’s report appears to regurgitate the police investigators’ initial report, which found insufficient evidence to support an attempted rape charge.
As a disciplinary committee, the Ad Hoc Committee did not conduct a thorough investigation to justify the conclusion which favored Onyango over Mupalia.
Understanding the meaning of “Insufficient Evidence.”
While it’s true Onyango was initially released due to insufficient evidence; it is essential to remember that legal systems operate under the principle of ‘presumption of innocence.’ This principle holds that an accused person is considered innocent until proven guilty beyond a reasonable doubt.
Releasing someone due to insufficient evidence does not automatically mean they are innocent or that the alleged crime did not occur. It simply means that the evidence presented was not strong enough to meet the justice system’s high standard of proof.
Furthermore, it is crucial to recognize that releasing someone due to insufficient evidence does not preclude further investigation or prosecution in the future. If new evidence emerges or the prosecution gathers additional information to build a stronger case, they can pursue charges afresh.
The release based on insufficient evidence should not be considered an exoneration or confirmation of innocence. It is a reminder that the legal system values the presumption of innocence and places the burden of proof squarely on the prosecution’s shoulders.
Below are the latest documents related to the case
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