[2017] KEHC 3178 (KLR)

IN THE HIGH COURT AT KISUMU

PETITION NO. 6 OF 2017

BETWEEN

DAVID OMBIMA alias SWEETIE ….…..…………..…………………… PETITIONER

AND

REPUBLIC …………….....................................................................… RESPONDENT

JUDGMENT

1. The petitioner, DAVID OMBIMA alias SWEETIE, was charged, convicted and sentenced to death for the offence of robbery with violence contrary to section 296(2)of thePenal Code (Chapter 63 of the Laws of Kenya) at a trial before the Senior Resident Magistrate’s Court in Maseno Criminal Case No. 662 of 2007. He appealed against the conviction and sentence to the High Court in Kisumu Criminal Appeal No. 60 of 2009. The appeal was dismissed on 18th May 2010. His appeal to the Court of Appeal, KSM CA Criminal Appeal No. 167 of 2010was dismissed on 23rd October 2014.

2. Although the petitioner’s application before the court is not clear, the substance is that it is a petition for re-trial on the ground that his rights to a fair trial under Article 50 of the Constitution were violated. In his application he states that he was held in custody for a period of overs 36 days, that he was never supplied with a charge sheet and witness statements despite requesting for them leading to a miscarriage of justice. He states that it is only through the production of the occurrence book that the various omissions before the trial court can be remedied. He also states that the arresting and investigating officers never recovered any exhibit linking him to the case.

3. Before I deal with the substance of the petition, I will outline the substance of the case against the petitioner before the trial court. PW 1 testified that he had known the appellant as a regular user of his matatu. On the night of 11th May 2007, while PW 1 was asleep with his wife, he was awoken by screams for the neighbourhood. He woke up his wife and peeped through the window but did not see anyone. After the screaming stopped, he heard people approaching his house. When he looked through the window, he saw their neighbour PW 2 in the company of about 10 men armed with pangas and iron bars. They smashed through his wall with a big hammer. PW 1 and his wife were able to see the assailants through the hole. As the gang also attempted to cut the window, PW 1 realised he could no longer restrain them so he opened the door for them. The appellant was among the 5 people who entered the house. PW 1 testified that all this time the electric light in the house was off but the assailants had torches which they kept flashing. PW 1 was certain that he recognised the petitioner with the aid of the security light outside before they entered the house. He also gave the petitioner’s description to PW 9, a police officer, at the time of reporting the incident. On 8th June 2007, PW 1 recognised the petitioner and another youth when they flagged down his matatu and with the aid of other matatu operators, the petitioner was arrested and taken to Luanda Police Station.

4. Apart from the testimony of PW 1, PW 2 corroborated the fact that the petitioner was one of the assailants on the material day. She confirmed that there were bright security lights outside her hotel and PW 1’s house. She went out that night after hearing screams and met a gang of about 12 people assaulting the watchman. When she went to his aid, they also beat her and demanded to be taken to the home of the person who owned a matatu. She escorted them to PW 1’s house. The assailants attempted to break into the window but were let into the house where they stole assorted items. She later went to the police station and reported the incident. When the petitioner was arrested, PW 2 identified him at an identification parade. She was sure about his identity because the petitioner is the one who stopped the other assailants from beating her as he recognised her as the area councillor.

5. The key issue before the trial court, the first appellate court and the Court of Appeal was that of identification. After reviewing the evidence, the Court of Appeal affirmed the conviction and stated as follows:

[9] From the evidence, we are satisfied that the with the bright security lights outside PW 1’s residence and PW 2’s hotel, the conditions were favourable for the appellant’s identification by PW 1 and PW 2. With the period of 1 hour that the robbery took, the witness had ample time to see the robbers. As we stated, PW 1’s identification of the appellant was that of recognition. He had known the appellant before and had given his description to Sergeant Morris Ngome, PW 9. PW 2 said she identified the appellant as the one who rescued her from further assault by his confederates because he knew her as councillor.

6. The case against the petitioner was based on identification by two witnesses and the central consideration in this matter is whether the petition has provided new and compelling evidence to cast doubt on the verdict of the trial court affirmed by the two appellate courts. It is not in dispute that the petitioner has now exhausted the avenues for appeal available to him. The only issue is whether he has new and compelling evidence.

7. The Supreme Court in the case of Lt Col. Tom Martins Kibisu v Republic Sp. Ct. Petition No. 3 of 2014 [2014]eKLRstated as follows regarding new and compelling evidence under Article 50(6) of the Constitution;

[42] We are in agreement with the Court of Appeal that under Article 50(6), “new and compelling evidence” means “evidence which was not available at the 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 the trial would probably have led to a different verdict.” A Court considering whether evidence is new and compelling for a given case, must ascertain that it is, prima facie, material to, or capable of affecting or varying the subject charges, the criminal trial process, the conviction entered, or the sentence passed against the accused person.

8. It is clear that the facts I have outlined, the petitioner has not presented any new and compelling evidence. All the issues he has raised are procedural infractions which ought to have been raised before the trial court and appellate court for consideration. Procedural violations do not constitute new and compelling evidence within the meaning of Article 50(6) of the Constitution.

9. The petition is devoid of merit and is dismissed.

DATED and DELIVERED at KISUMU this 11th day of October 2017.

D.S. MAJANJA

JUDGE

Petitioner in person.

Ms Barasa, Prosecution Counsel, instructed by the Director of Public Prosecutions for the Respondent.