Amboko v Republic (Criminal Revision E004 of 2026) [2026] KEHC 6780 (KLR) (18 May 2026) (Ruling)

Amboko v Republic (Criminal Revision E004 of 2026) [2026] KEHC 6780 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6780 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Revision E004 of 2026 RN Nyakundi, J May 18, 2026 IN THE MATTER OF ARTICLES 2, 3(a), 19(2), 20(1), 22(1), 23(1), 25(c), 26(1), 27(1) (4), 28, 50(2)(p)(q), 159(2) AND 165(3) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF CONSTITUTION OF KENYA (Protection of Rights and Fundamental Freedoms) PRACTICE AND PROCEDURE RULES 2010 AND IN THE MATTER OF SECTION 295 AS READ WITH SECTION 296 (2) OF THE PENAL CODE Between Charles Amboko Applicant and Republic Respondent Ruling 1.Before this court is a notice of motion by the Applicant, dated on 19th March 2026, seeking the following orders:a.I was charged and convicted for an offence of robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code and in count two for gang rape contrary to section 10 of the SOA No 3 of 2006 in criminal case number 539 of 2014 at CM'S court Vihiga and sentenced to death and 3 years imprisonment respectively, the sentences termed to run concurrently.b.That, I appealed to the high court at Kakamega vide HCCRA. NO.55 of 2016 and my appeal only merited in the quashing of death sentence in robbery with violence and substitute it with 35 years jail term and enhanced the 3 years term in Gang rape tol5years.c.That, I later appealed to the 2nd appellate court at KISUMU vide C.O.A NO.178 OF2019 whereby the same was dismissed on 22.11.2024 2.Which application is made in the following grounds;a.That, my first appeal in HCCRA NO. 55 OF 2016 at Kakamega High Court partially merited in the sense that the sentence of DEATH in count I in the offence of Robbery with violence contrary to Section 296(2) of the Penal Code was substituted to 35years though the original sentence was said to run concurrently.b.That, I filed an appeal to the court of Appeal at Kisumu vide C.O.A NO.178 of 2019 whereby the two sentences in robbery with violence and gang rape was dismissed on22.11.2024 by the three judge bench.c.That, the High Court has competent jurisdiction to hear and determine this application under Article 165(3) (b) of the Constitution of Kenya 2010d.That, under the Constitution of Kenya under Article 50 (2) (p) (q) an Applicant has a right to benefit from the least severe sentence and have his sentence reviewede.That the applicant approaches this Hon. Court seeking for re-hearing basing mitigations and for re-sentencing.f.That the applicant herein is a first offender, remorseful and was arrested while in his teenage. He had no family of his own.g.While in custody, he has undergone reformation and rehabilitative programs and now ready to be re-integrated back to his vulnerable parents- to better their livelihoodh.That the applicant has served a whooping II years since his arrest thus prays with humility that the Hon. Court consider him reformed and substitute the 35 years sentence with the least or non-custodial sentence or order for release whichever order the court may deem fit.i.That, a sentence of 35 years’ imprisonment contravenes section 216 and 389 of the Criminal Procedure Codes on mitigation and the values of sentencing as in the Sentence Policy Guidelines 2016 Paragraph 4;j.That, under the provisions of the Constitution of Kenya 2010 and Practice and Procedure Rules 2010 this Court has power to hear and determine infringements off unfundamental rights and award remedy. 3.From the facts of this case the Applicant seeks a revisit of jurisdiction on sentence review based on Articles 2, 3(a), 19(2), 20(1), 22(1), 23(1), 25(c), 26(1), 27(1) (4), 28, 50(2)(p)(q), 159(2) and 165(3) of the Constitution of Kenya. 4.The above Articles in which the application is premised provide briefly as follows:2(1)This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.(2)No person may claim or exercise State authority except as authorised under this Constitution.(3)The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.(4)Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.(5)The general rules of international law shall form part of the law of Kenya.(6)Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. 3.(1)Every person has an obligation to respect, uphold and defend this Constitution. 19(2)The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.20.(1)The Bill of Rights applies to all law and binds all State organs and all persons.22.(1)Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.23.(1)The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.25(c)the right to a fair trial; 26.(1)Every person has the right to life. 27.(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.(4)The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. 28.Every person has inherent dignity and the right to have that dignity respected and protected. 50.(2)Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. 159.(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(a)justice shall be done to all, irrespective of status; (b) justice shall not be delayed;(c)alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);(d)justice shall be administered without undue regard to procedural technicalities; and(e)the purpose and principles of this Constitution shall be protected and promoted.(3)Traditional dispute resolution mechanisms shall not be used in a way that—(a)contravenes the Bill of Rights;(b)is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or(c)is inconsistent with this Constitution or any written law.(3)Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;(c)jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—(i)the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and (iv) a question relating to conflict of laws under Article 191;(e)any other jurisdiction, original or appellate, conferred on it by legislation. 5.The interpretation of the Constitution is provided for under Article 259 drawing from the foundational Article 2 and 10 which briefly provides as follows; that the Constitution binds everyone who has to apply and interpret it or any other law, or makes public policy, to the national values spelt out therein including: human dignity, equity, social justice, inclusiveness, equality, human rights, transparency and accountability. It opens up further space for application of other principles and values obtaining in the general rules of international law and the international instruments Kenya has ratified, such as, the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Political Rights (ICESCR). 6.In Articles 20(3) and (4), it gives an edict to the Courts as they apply the Bill of Rights to develop the law where it does not give effect to a right; adopt the interpretation that most favors the enforcement of a right or fundamental freedom; and promote the values that underlie an open and democratic society based on human dignity, equality, equity, freedom and the spirit, purport and objects of the Bill of rights. 7.There is also Article 259 which commands the manner in which the Constitution should be interpreted; that is. ‘a manner that promotes its purposes, values and principles; advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; permits the development of the law and contributes to good governance’. It also demands that every provision of the Constitution ‘shall be construed according to the doctrine of interpretation that the law is always speaking’. 8.What the above provisions denote is the Constitution must be read as a living political document rather than a rigid purely textual rule book. The jurisprudence in Kenya has cemented a liberal and purposive approach to interpreting fundamental human rights provisions and supremacy of the Constitution (See Stanley Mombo Amuti and Kenya Anti-Corruption Commission Petition No. 21 of 2019, Joseph Ombogi Egentoto and Martha Egentoto & 2 Others Petition No. 11 of 2020. In the matter of the Principle of Gender Representation in the National Assembly and the Senate [2012], in the Communications Commission of Kenya [CCK] & 5 Others v Royal Media Services Limited & 5 Others [2014], Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission [IEBC] & 3 Others [2013 & 2017 Presidential Election Petitions) & Mitu-Bell Welfare Society v Attorney General & 2 Others [2021]. 9.The gist of the current application before this Court is on review of sentence which subject matter has been litigated before Kakamega High Court vide HCCRA NO. 55 of 2016 and thereafter before the Kenya Court of Appeal by dint of Case No. 178 of 2019. According to the Applicant he has now approached this Court seeking for a rehearing based on mitigations and resentencing process. Therefore, his application can be litigated under Article 50(6) (a) & (b) of the Constitution. What is the expectation of the law under this Article in so far as convicted persons are concerned? The law allows them leave to petition the High Court for a new trial if their highest permissible appeal was dismissed and new compelling evidence has become available. The legal framework of these provisions under our Constitution requires that the Petitioners initial appeal has either been dismissed by the highest Court entitled to hear it or the statutory term limit to file an appeal has lapsed. The other important ingredient under this Article is that it requires the Petitioner to present new and compelling evidence that was previously unavailable during the trial or initial appeal. 10.The threshold as outlined in the case of Tom Martins Kibisu v Republic [2022] eKLR is that the new evidence that was unavailable during the initial trial and could not have been presented even if reasonable diligence had been exercised. Towards that end, the law envisages compelling evidence to be of high probative value and credibility that would have been admissible in the trial and would probably have led to a different verdict had it been presented by the Applicant. Similarly, in the case of Philip Mueke Maingi & 2 Others v Republic [2022] eKLR the Court explained itself on the first limb of the article as follows:“ 40.In so far as the first limb is concerned, the Article talks about the highest court to which the person is entitled to appeal as opposed to the highest appellate court in the land.”What this means is this; in a scenario where the trial Court was the Magistrate’s Court, the highest Court which a convict is entitled to appeal on matters of fact is the High Court. This is because Section 361 (1) of the Criminal Procedure Code bars a party from lodging a further appeal from the High Court to the Court of Appeal on matters of fact and limits such further appeal to matters of law only.A person whose challenge to the conviction is based on matters of fact need not have prosecuted a further appeal at the Court of Appeal before being able to petition the High Court under Article 50(6) for re-trial, as he would have exhausted his course of appeal at the High Court. 11.It was also the decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others Supreme Court Petition No. 4 of 2012; [2014] eKLR in which the Court established the foundational principles applied to additional evidence, requiring that such evidence is directly relevant, credible and capable of influencing the verdict. 12.The doctrine of new compelling evidence as provided for under Article 50(6) (a) & (b) of the Constitution allows the High Court to order a retrial if convicted person discovers material evidence that was previously unavailable. The expectation of the law on the part of the Applicant is to establish and demonstrate that on matters of sentence review there was unavailability of a piece or pieces of evidence during the initial trial and could not have been discovered or obtained by him or her despite the exercise of due diligence. The other legitimate expectation on the part of the Applicant is that the kind of evidence now available ought to be admitted for the interest of justice for it is directly relevant to the core issues of the case on sentence and will serve the overreaching interest of justice in the matter. His affidavit therefore must show the nature and character of the new evidence to persuade this Court to order for a retrial. Secondly, there must be probative and cogent evidence that it was impossible to present it during the original trial and the same if allowed it will alter the verdict on sentence. 13.I have taken time to examine the motion and correspondent affidavit. There is absolutely no evidence which comes within the scope of Article 50(6) (a) & (b) of the Constitution. The only thing available in the affidavit is fundamentally on issues of the sentence being punitive and all excessive and the retrial is for an order of non-custodial sentence. This application has been brought before me for retrial after the decisions by both the High Court and the Court of Appeal have heard and been determined the appeals on merit on both conviction and sentence. 14.There is an expectation imposed the accused persons or other litigating parties to place the whole of their case before the various forums of adjudication at the time of the initial hearing, at the level of Appeal’s Court including the Court of Appeal of Kenya. Therefore, reopening a proceedings under Article 50(6) (a) & (b) to introduce new or further evidence whether done before or after a decision has been issued in a matter is thus an extra ordinary step and one that the importance of finality and quick resolution of either civil disputes or criminal trials militates against taking a decision for a retrial unless exceptional circumstances are present and established by the Applicant under Section 107(1), 108, 109 and 112 of the Evidence Act. 15.This is the position taken by the persuasive decision in Oakley v Royal Bank of Canada, 2013 ONSC 145, [2013] OJ No. 109 (SC):“10 The Court requires the parties to litigation to bring forward their whole case. … In both civil and criminal matters, the Crown or plaintiff must produce and enter in its own case all clearly relevant evidence it has. …11 On the other hand, a trial Judge has the discretion to permit a Plaintiff to re-open its case. This discretion however, must be exercised judicially. It must involve a scrupulous balancing of the accountability of counsel for decisions regarding the prosecution of its case and the interests of justice. …” (QL at para. 10-11). 16.In addition, the Canadian Encyclopedic Digest - Evidence, IV 12(a), summarized the typical judicial approaches employed in applications to re-open proceedings I the following passage:“Where a party wishes to adduce evidence at a late stage that does not fall within the definition of rebuttal testimony, it must seek to re-open its case. The jurisprudence has not always been consistent in establishing what is required for the granting of leave to adduce new evidence and the matter is complicated by the fact that attempts to re-open can occur after the parties have closed their case, but before judgment has been delivered; after judgment has been delivered but before that judgment has been entered; and after judgment has been entered. While some judges have advocated an unfettered approach to the trial judge’s discretion, whereby re-opening is permissible any time it is in the interests of justice to do so, the more common method of proceeding is to focus on two criteria: (1) whether the evidence - if it had been properly tendered - would probably have altered the judgment; and (2) whether the evidence could have been discovered sooner had the party applied reasonable diligence. Re-opening the case is an extreme measure, and should only be allowed sparingly and with the greatest of care.While the two criteria must both be considered, the need to have exercised reasonable diligence in discovering the evidence is not absolute. The more important the evidence would be to the outcome of the case, the stronger the argument in favour of its reception. Procedural concerns such as diligence should generally give way to the demands of substantial justice where failure to do so is likely to result in an obvious injustice. Nonetheless, re-opening is unlikely to be permitted where the evidence was discovered and not adduced originally because of a tactical decision by counsel.In deciding whether to re-open, the court should also consider the complexity of the evidence and the possibility that the opposing party will need to call evidence in reply. Judges will be hesitant to re-open where it would essentially amount to a second trial. In contrast, where the evidence to be submitted is uncomplicated or undisputed, admission is more likely. (Carswell, at para. 266-268)”. 17.Based on the above principles and as applied to the facts of this case I find no merit to grant the remedies on retrial revolving around the subject matter on sentence imposed by the trial Court as thereafter revisited by the Appeal’s Court. The application is dismissed for want of merit. It is so ordered. DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026........................................R. NYAKUNDIJUDGE