[2013] KEHC 5210 (KLR)
The court found that the applicant failed to present any new and compelling evidence as required by law to justify a re-trial. The alleged contradiction in PW9's evidence had already been raised before two judges and was therefore not new. The Occurrence Book entry was not exhibited, and even if a complainant...
Source-derived case information.
- Citation
- [2013] KEHC 5210 (KLR)
- Parties
- Applicant: Eliud Iroka Macharia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 41 of 2012
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Re Trial
- Outcome
- application dismissed
- Legal Topics
- Retrial Applications, New and Compelling Evidence, Criminal Procedure, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliud Iroka Macharia
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Re Trial
Legal Issues
- 1 Whether the applicant has presented new and compelling evidence to warrant a re-trial.
- 2 Whether the issues raised by the applicant were previously considered during trial or appeal.
Ratio Decidendi
The court found that the applicant failed to present any new and compelling evidence as required by law to justify a re-trial. The alleged contradiction in PW9's evidence had already been raised before two judges and was therefore not new. The Occurrence Book entry was not exhibited, and even if a complainant reported grievous harm, the police could lawfully charge a different offence if supported by evidence. The court concluded that the proper avenue for the applicant was to pursue an appeal before the Court of Appeal, not to seek a re-trial based on the grounds presented.
Court Disposition
application dismissed
Orders
- The application for re-trial is dismissed.
- The applicant should pursue his appeal before the Court of Appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
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ELIUD IROKA MACHARIA ...................................................... APPLICANT
V E R S U S
REPUBLIC ............................................................................ RESPONDENT
R U L I N G
In his application dated 28th February 2012, the applicant is seeking a re-trial. The grounds upon which the application is made is that the applicant has discovered new and compelling evidence that was not available during the trial. In his supporting affidavit, the applicant avers that the Occurrence Book (O.B.) did indicate that it was a case of causing grievous harm yet he was a charged with robbery with violence. The applicant further submitted that the evidence of PW9 is contradicting his statement made to the police.
The state opposed the application and submitted that the issues being raised are not new. The applicant ought to appeal to the Court of Appeal.
With regard to the evidence of PW9, I have seen the proceedings before the two judges. The applicant submitted before the two judges that the evidence of PW9 differed with his evidence in court. Thus, that issue is not new evidence neither is it compelling. As for the Occurrence Book, the same has not been exhibited. Further, a complainant can report a case of grievous harm but the police can charge the accused with a different offence such as robbery with violence if they note that the evidence from the witnesses can sustain the charge.
In the end, I do find that there is no new and compelling evidence to warrant a re-trial. The applicant should pursue his appeal before the Court of Appeal. The application herein is hereby dismissed.
Delivered, dated and signed at Kakamega this 7th day of February 2013.
SAID J. CHITEMBWE
J U D G E