[2018] KEHC 3560 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

MISC. CRIMINAL APPLICATION NO. 38 OF 2017

ALEX ABUGA MONYONCHO.....................................................APPLICANT

=VRS=

REPUBLIC....................................................................................RESPONDENT

RULING

The application before this Court is for retrial under Articles 23 (1), 24, 25, 27 (1), (2), 28, 29, 33 (1) (a) 49 (1) and 50 (2) (j) as read with Article 165 and all the enabling Provisions of the Constitution of Kenya, 2010.

The Applicant avers that he had a right to free and fair hearing and that the Trial Court did not give him a right to mitigate before passing the sentence which he termed as “harsh, traumatized, excessive arbitrary and inhuman.”

During hearing, the Applicant relied on written submissions in which he has stated that he was not informed in advance of the evidence of the eye witness one Agnes Moraa and the report made by the complainant to the police and further that the Trial Court did not give him a chance to mitigate yet his mitigation would have allowed the Trial Court to reach a fair decision. He also contends that he was not given reasonable access to the evidence of the prosecution and more so the medical report adduced by the clinical officer. He further submitted that his rights to a fair trial were violated as he was not informed of the charge facing him with sufficient details to answer it.

The Respondent was represented by Mr. Ochieng who opposed the application. He stated that nothing had been adduced to prove that there was new and compelling reasons to warrant a retrial and that what was before Court were mere allegations. He prayed that the application should be dismissed.

The right to a new trial is anchored under Article 50 (6) of the Constitution which states:-

“(6) A person who is convicted of a criminal offence may petition the High Court for a new trial if—

(a) the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and

(b) new and compelling evidence has become available.”

The issue for determination therefore is whether the Applicant has demonstrated that there is new and compelling evidence to warrant this Court to order a new trial.

On the issue of what is new and compelling evidence it is now fairly settled that “new evidence means” “evidence which was not available at the time of trial and which despite exercise of due diligence, could not have been availed at the trial,” and “compelling evidence” implies “evidence that would have been admissible at the trial, of high probative value and capable of belief, and which if adduced at trial would probably have led to a different verdict(see Tom Martins Kibisu =V= R [2014] eKLR].

Therefore for one to establish that he has new and compelling evidence, it must be shown that:-

(a) There is new evidence which must not have been available to him during the trial and that such evidence could not have been obtained with reasonable diligence for use at trial or that the evidence was not available at the time of hearing.

(b) The evidence is compelling, is admissible and credible and not merely corroborative, cumulative, collateral or impeaching. Such evidence must not only be favourable to the petitioner but it must be such evidence as is likely to persuade this Court to reach an entirely different decision from the decision already reached by the two appellate courts (see Patrick Macharia =V= R [2014] eKLR).

As was observed by Majanja J in Wilson Thirimba Mwangi =V= Director of Public Prosecutions [2012) eKLR, the right to a new trial seeks to balance the public interest in having finality in criminal cases on the one hand and ensuring that where there is new and compelling evidence, an innocent person should not suffer the penalty of a conviction.

I have considered the application, the grounds thereof, the submissions and the law and my finding is that the grounds raised by the Applicant do not show availability of new and compelling evidence to warrant a new trial. Whereas the issues raised by the Applicant would give rise to an appeal they do not amount to new and compelling evidence such as would warrant a new trial. Moreover the Applicant did not avail any proceedings of his case as would enable this Court to confirm the veracity of the grounds raised.

I find no merit in the application. It is hereby dismissed.

Dated and Delivered at Nyamira this 26th day of July, 2018.

E. N. MAINA

JUDGE