[2016] KEHC 6199 (KLR)
The court found that the applicant failed to present any new and compelling evidence as required by Article 50(6) of the Constitution. The issue of the prosecution's failure to call certain witnesses was known to the applicant during the trial and appeal processes, and he had the opportunity to call them if he...
Source-derived case information.
- Citation
- [2016] KEHC 6199 (KLR)
- Parties
- Applicant: Benard Omondi Nyawara; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 14 of 2012
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- petition dismissed
- Legal Topics
- Murder Conviction, New and Compelling Evidence, Constitutional Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Omondi Nyawara
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicant has presented new and compelling evidence as required under Article 50(6) of the Constitution to warrant a retrial or reconsideration of his conviction.
- 2 Whether the failure to call certain witnesses by the prosecution constitutes new and compelling evidence.
Ratio Decidendi
The court found that the applicant failed to present any new and compelling evidence as required by Article 50(6) of the Constitution. The issue of the prosecution's failure to call certain witnesses was known to the applicant during the trial and appeal processes, and he had the opportunity to call them if he deemed necessary. The court held that this did not constitute new evidence, and there was no basis to reopen or reconsider the conviction. Consequently, the petition lacked merit and was dismissed.
Court Disposition
petition dismissed
Orders
- The petition is dismissed for lack of merit.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
MISC. APP. NO.14 OF 2012
BENARD OMONDI NYAWARA..........................................APPLICANT
VERSUS
REPUBLIC.......................................................................RESPONDENT
J U D G M E N T
The petitioner herein was charged with the offence of Murder and convicted. His appeal to the Court of Appeal was dismissed., He has then filed this petition based on the provision of Article 50(6) of the Constitution of Kenya 2010. The said Article provides that a loosing party in a case can still petition for a reconsideration of his case if there is a new and compelling evidence.
The Supreme Court in TOM MARTINS KIBISU VRS REPUBLIC (2014) eKLR defined “new and compelling evidence” as:
“Evidence that was not available at the time of the trial or could not have been availed upon exercise of due diligence and evidence sufficiently weighty that if it was available to the trial or the appellate courts then conviction would probably not have been sustained.”
In this petition the applicant has argued that the case was determined purely on circumstantial evidence and that key witnesses MUSA OMENO and DOREEN AMONDI were not called by the prosecution. Had they been called, the court would have arrived at the proper conclusion, that is, his innocence.
On her part the learned state counsel argued that there is no new and compelling evidence and all that the petitioner was doing was pure speculation.
Having perused the said petition together with the decisions of the two Superior Courts, I respectfully do not find any new evidence as envisaged by Article 50(6) of the 2010 Constitution. The question of failure to call any key witness was within the knowledge of the petitioner all through both trials. He knew the 2 witnesses and in any case he had the opportunity of calling them if he deemed necessary. Needless to say the two courts must have considered this factor before arriving at their conclusion
In the premises I do not find any merit in the petition and the same is dismissed.
Dated, signed and delivered this 22nd March, 2016.
H. K. CHEMITEI
J U D G E