[2015] KEHC 1847 (KLR)
The court found that the issues raised by the petitioner, specifically his age at the time of the offence and the alleged lack of legal representation, had already been addressed by the Court of Appeal or were not substantiated by new and compelling evidence. The Court of Appeal had already substituted the...
Source-derived case information.
- Citation
- [2015] KEHC 1847 (KLR)
- Parties
- Applicant: Daniel Wesonga Mwita; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 61 of 2013
- Procedural Posture
- Miscellaneous Criminal Application / Judgment
- Outcome
- petition dismissed
- Legal Topics
- Fresh Evidence, Constitutional Rights, Juvenile Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Wesonga Mwita
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Judgment
Legal Issues
- 1 Whether there is new and compelling evidence to warrant a retrial or review under Article 50(6) of the Constitution.
- 2 Whether the petitioner's age at the time of the offence constitutes new evidence.
- 3 Whether lack of legal representation during trial amounts to a ground for review.
Ratio Decidendi
The court found that the issues raised by the petitioner, specifically his age at the time of the offence and the alleged lack of legal representation, had already been addressed by the Court of Appeal or were not substantiated by new and compelling evidence. The Court of Appeal had already substituted the petitioner's sentence to detention at the pleasure of the President due to his age, and the petitioner was represented by counsel at the appellate stage. The High Court held that it was not an appellate forum to reconsider matters conclusively determined by the Court of Appeal. Consequently, the petition did not meet the threshold for review under Article 50(6) of the Constitution, and...
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CRIMINAL APPLICATION NO.61 OF 2013
DANIEL WESONGA MWITA…………………...PETITIONER
VERSUS
REPUBLIC……………………………………RESPONDENT
J U D G M E N T
1. The petitioner was convicted and sentenced to life imprisonment. His appeals to this Court and the Court of Appeal failed. He is now seeking another chance pursuant to the provisions of Article 50(6) of the Constitution namely that there are new and compelling evidence which we should consider.
2. The substantive argument by the petitioner was that at the time of the offence he was under-age. We do not find this a new ground as the Court of Appeal on this ground rendered itself as follows:
“..... However with regard to sentence, we agree with the learnedPrincipal State Counsel that Daniel and Joseph, the second and thirdappellants respectively, were indeed under the age of 18 at the time of the offence and accordingly, we substitute their sentence of death, with an order that they be detained at the pleasure of the President.”
3. Obviously the Court of Appeal determined this ground and it is not for us to sit as an appellate court. If the petitioner was unhappy he ought to have proceeded to the Supreme Court.
4. Neither is it true as submitted by the petitioner that he did not have counsel during the entire trial. The petitioner ought to have raised this issue both at the trial court and in the Court of Appeal.. In any event he was well represented by a counsel in the Court of Appeal.
5. We have said much to show that there is no new and compelling evidence. The petition is otherwise dismissed.
Dated, signed and delivered this 27th day of October, 2015
H. K. CHEMITEI E. N. MAINA
J U D G EJ U D G E