[2018] KEHC 36 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

MISC CRIMINAL APPEAL NO. 15 OF 2015

FRANCIS KINYUA IRERI………………………………………………..APPELLANT

VERSUS

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

JUDGEMENT

Notice of motion dated 15th December 2015 seeks the following three prayers.

1) An order for retrial of the petitioners case in the make of the new and compelling and care in light of Article 50 (6) (b) of the constitution of Kenya and in the interest of justice.

2) The renew of the petitioner’s case in the line with the provisions of Article 23(3) and Article 29(d).

3) An order for the release of the petitioner from prison on bond terms as this Honorable court may deem fit and just pending the hearing and determination of this petition.

4) Any other relief this honorable court may deem fit and just to grant in the interest of justice considering the circumstances of the case. (The above prayers are as per the application itself).

The application is supported by the petitioners own affidavit. The respondent filed a replying affidavit sworn by Brenda N. Nandwa Advocate on 12th January 2016.

The main issue being raised in the petition is that the petitioner has recently traced an important witness who wishes to testify on his behalf. The rules of natural justice dictate that the accused must be offered the right to defend himself and present his case to his satisfaction. It is submitted that the petitioner’s new witness should be given a chance to testify and in so doing will help the petitioner’s case and most likely would lead to the court reaching a different verdict .The petitioner must not be denied a chance to prove and defend his case as the right to a fair hearing is guaranteed under the constitution.

Mr. Njagi counsel for the petitioner contends that section 296(2) of the penal code contravenes the principal of fair trial as protected by the constitution of Kenya 2010. Article 50 (2) (h) provides that the accused person was to have an advocate at the states expense if substantial injustice would otherwise result .The criminal proceedings blatantly violated the petitioner’s constitutional right to a fair hearing. Had the petitioner been accorded representation by a counsel, the violation would not have resulted.

Miss Nandwa, learned prosecution counsel, opposed the application. It is submitted that the petitioner had ample time before the trial court to present his witnesses. The application does not state who the witness is and what the new evidence is .Therefore this court is not able to weigh this new evidence against the prosecution evidence. Counsel relies on the case of Lieutenant Martin Kibisu v Republic, Supreme Courtpetition No 3 of 2014 where the supreme court held as follows:

We are in agreement with the court of appeal that under Article 50(6), “new evidence” means “evidence which was not available at the of 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 charge, the criminal trial process’ the conviction entered or the sentence passed against an accused person.

Counsel further submits that Article 50(2) (h) is yet to be operationalized. The fact that the petitioner was not accorded an advocate cannot be a ground for retrial. The petitioner has not demonstrated in anyway the new and compelling evidence.

The record shows that the petitioner and three others were charged with nine counts of robbery with violence contrary to section 296 (2) of the Penal Code. They were convicted on six (6) counts and sentenced to suffer death. The appellant and his co-accused filled criminal appeals number 193,195 and 196 of 2008 before the Embu high court. The appeals were dismissed on 31st May 2013. The High Court upheld the conviction on four counts. The petitioner and his colleagues filled criminal appeals number 83 ,100 and 101 of 2013 before the Court of Appeal in Meru . Those appeals were equally dismissed on 18th march 2015.

Article 50 (6) (b) of the constitution states as follows:-

A person who is convicted of a criminal offence may petition the High court for a new trial if

(b) New and compelling evidence has become available

The petitioner contends that he has traced a witness who is ready to testify for him. The effect of such contention is that the witness was not available initially but has now been traced. The petitioner does not state the name of the witness. The nature of the evidence is not stated. How will the court be convinced that indeed there is a new witness with evidence which is compelling. It is not sufficient to state that a new witness has been traced and he is ready to testify. For one to fulfill the conditions of Article 50 (6) (b) one must go further and have that witness swear an affidavit and if need be annex a copy of his witness statement. It would be procedural for such a witness to approach the office of the director of public prosecution (DPP) and state that the petitioner was wrongly convicted as he knows the real person who committed the offence. That way, the director of public prosecution may weigh that evidence and decide on whether to approach the court if the evidence is compelling or ignore the witness if satisfied that the evidence is not compelling .The alleged new witness can also appear before court and state where he has been and what is the new and compelling evidence he has .The High Court has had to deal with a flood of applications grounded on Article 50 (6) (b) yet most of them are based on flimsy grounds. It is understandable that once a convict runs through the High Court and the Court of Appeal, and the appeals are dismissed, He/she feels dejected as all the options are exhausted. This leads to filing of such petitions under Article 50 (6) (b) just to give himself one more chance. My advice to the convict is that they should first weigh their applications before approaching the High Court. At times the application is filed soon after the court of Appeal dismisses an appeal. One wonders then how fast was the new and compelling evidence discovered.

The petitioner contend that he was not accorded an advocate and that violated Article 50(2) (h) of the constitution. The record shows that before the Court of Appeal, M/S R. Kimunya appeared for the petitioner’s two co-appellants while Mr. S.K Njuguna appeared for the appellant. The appellant had no advocate before the trial court and the High court.

The mere fact that an accused is convicted does not mean that there was substantial injustice and therefore Article 50 (2) (h) was violated. The state has been providing pro bono advocates to those charged with the offence of murder at the state’s expense. This has not been escalated to those charged with robbery with violence. Those charged with the offence of robbery with violence are currently expected to hire their own advocates. There were no violation of Article 50(2) (h) of the constitution. This cannot be a ground for an application under Article 50(b) (h). The petitioner hired an advocate who represented him before the Court of Appeal and has likewise hired an advocate to represent him in this petition. He is aware of his right to be represented by an advocate.

I do find that the application herein was filed without much thought. There is no good explanation as to why the application was filed in the first instance. Who is the new witness and what is his evidence.

This is nothing but wastage of judicial time. The application lacks merit and is hereby dismissed.

Dated and signed at Marsabit this………….…………..day of May 2018

SAID CHITEMBWE

JUDGE.

Dated signed and delivered at Embu this 31st day of May, 2018

F. MUCHEMI.

JUDGE.