[2015] KEHC 1778 (KLR)
The court held that the applicant's claim of lack of legal representation during trial does not amount to new and compelling evidence as required by Article 50(6) of the Constitution. The court found that the applicant never requested for legal representation at any stage of the trial, and there was no evidence that...
Source-derived case information.
- Citation
- [2015] KEHC 1778 (KLR)
- Parties
- Applicant: Eddy Otieno Ongoma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 71 of 2014
- Procedural Posture
- Miscellaneous Criminal Application / Judgment
- Outcome
- petition dismissed
- Legal Topics
- Robbery With Violence, Right to Fair Trial, Legal Representation, New and Compelling Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eddy Otieno Ongoma
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Judgment
Legal Issues
- 1 Whether lack of legal representation during trial constitutes new and compelling evidence under Article 50(6) of the Constitution to warrant a retrial.
- 2 Whether the applicant's rights under the Constitution were violated due to absence of counsel during trial.
Ratio Decidendi
The court held that the applicant's claim of lack of legal representation during trial does not amount to new and compelling evidence as required by Article 50(6) of the Constitution. The court found that the applicant never requested for legal representation at any stage of the trial, and there was no evidence that such a request was made and denied. Furthermore, the statutory requirement for mandatory legal representation applies only to murder cases, not to robbery with violence. The court concluded that the applicant failed to meet the threshold for a retrial and dismissed the petition.
Court Disposition
petition dismissed
Orders
- The petition for retrial 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.71 OF 2014
EDDY OTIENO ONGOMA.............APPLICANT
VERSUS
REPUBLIC..............................RESPONDENT
J U D G M E N T
1. The appellant was charged with the offence of Robbery with Violence and sentenced to death. His appeal to this Court and the Court of Appeal failed. The sentence of death was later commutted to life imprisonment.
2. He has filed this petition dated 24. 7.14 under the provisions of Article 23(1)(3)(f) as read with Articles 50(6) of the Constitution. The said Articles of the Constitution permits a party to seek a fresh mandate of this Court to order a retrial. The basic reason that one ought to exhibit is that there ought to be new and compelling evidence which has been discovered after exhausting all the appeals.
3. We note from the appellant's submission that the only reason he is asking the court to order a fresh trial is due to the fact that during trial at both the lower court and this Court he lacked legal representation. Apparently in the Court of Appeal the petitioner was well represented though according to him he did not have confidence on the counsel.
4. Respectfully we do not find the above reason plausible. The only offence that has been made mandatory by our statutes that one has to be provided with a counsel is Murder. Although it is a constitutional right for one to be represented, the same is not obligatory in other offences.,
5. In this matter the petitioner at no time requested for legal representation and denied. No evidence whatsoever has been presented before us. In any event his co-appellant at the High Court was well represented. What was difficult for him to have requested for counsel then?
6. In the premises we do not consider this a new and compelling evidence as envisaged by Article 50(6) of the Constitution. The petition is hereby 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