[2013] KEHC 5213 (KLR)
The court held that the applicant failed to present new and compelling evidence as required by Article 50(6) of the Constitution. The issues raised, including the date of arrest, the testimony of two youths, and the applicant's ill health, were matters that could have been addressed during the original trial and...
Source-derived case information.
- Citation
- [2013] KEHC 5213 (KLR)
- Parties
- Applicant: Evans Atuma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 3 of 2012
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Re Trial Under Article 50(6) of the Constitution
- Outcome
- application dismissed
- Legal Topics
- Retrial Applications, New and Compelling Evidence, Constitutional Rights, Criminal Procedure
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Atuma
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Re Trial Under Article 50(6) of the Constitution
Legal Issues
- 1 Whether the applicant has presented new and compelling evidence to warrant a re-trial under Article 50(6) of the Constitution.
- 2 Whether the applicant's ill health and lack of witness statements during the lower court proceedings constitute new and compelling evidence.
Ratio Decidendi
The court held that the applicant failed to present new and compelling evidence as required by Article 50(6) of the Constitution. The issues raised, including the date of arrest, the testimony of two youths, and the applicant's ill health, were matters that could have been addressed during the original trial and appeal. The court found no violation of the applicant's constitutional rights and determined that the application lacked merit. Consequently, the application for a re-trial was disallowed, and the applicant was advised to pursue an appeal before the Court of Appeal.
Court Disposition
application dismissed
Orders
- The application dated 23.12.11 is disallowed.
- The applicant should pursue an 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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EVANS ATUMA ..................................................... APPLICANT
V E R S U S
REPUBLIC ......................................................... RESPONDENT
R U L I N G
This is an application for a re-trial made under Article 50(6) of the Constitution. The applicant contends that page 19 of the proceedings show that there were two youths who allegedly saw the applicant robbing the complainant. The youths gave a date of 13. 9.2007 and the applicant was arrested on 13. 9.2007. Further, the applicant conducted the lower court case without witness statements. He was not in good health at the time and did not know how to apply for adjournment.
The State opposed the application and submitted that the issues being raised are not new.
The applicant states that he was sentenced to suffer death by the lower court in Criminal Case number 1325 of 2010 before the High Court and the same was dismissed on 8th December 2011. I do find that the issues being raised by the applicant do not amount to new and compelling evidence as required by Article 50(6) of the Constitution. The applicant had the opportunity to raise with both courts the date of his arrest as well as the alleged two boys who indicated that the offence was committed on 13. 9.2007. Having been sick during the hearing of the lower court case is not new and compelling evidence. The lower court case was not heard in one day. There was no violation of the applicant’s constitutional rights.
In the end, the application dated 23. 12. 11 lacks merit and the same is disallowed. The applicant should pursue an appeal before the Court of Appeal.
Delivered, dated and signed at Kakamega this 7th day of February, 2013
SAID J. CHITEMBWE
J U D G E