[2016] KEHC 6337 (KLR)
The court found that the Occurrence Book report relied upon by the applicant was already available to the trial court and did not introduce any new information that could have influenced the outcome of the case. The court held that the evidence did not meet the constitutional threshold of being new and compelling as...
Source-derived case information.
- Citation
- [2016] KEHC 6337 (KLR)
- Parties
- Applicant: Gafar Odongo Idi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 9 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Fresh Trial After Exhaustion of Appeals
- Outcome
- application dismissed
- Legal Topics
- Fresh Trial, New and Compelling Evidence, Robbery With Violence, Impersonation, Post Conviction Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gafar Odongo Idi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Fresh Trial After Exhaustion of Appeals
Legal Issues
- 1 Whether the applicant has met the threshold under Article 50(6) of the Constitution for a fresh trial.
- 2 Whether the Occurrence Book report constitutes new and compelling evidence capable of affecting the verdict.
Ratio Decidendi
The court found that the Occurrence Book report relied upon by the applicant was already available to the trial court and did not introduce any new information that could have influenced the outcome of the case. The court held that the evidence did not meet the constitutional threshold of being new and compelling as required under Article 50(6). Consequently, the application for a fresh trial was dismissed as the applicant failed to demonstrate the existence of evidence that could have led to a different verdict.
Court Disposition
application dismissed
Orders
- The application for a fresh trial is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
INT HE HIGH COURT OF KENYA AT KISUMU
MISC. CRIMINAL APPL. NO.9 OF 2013
GAFAR ODONGO IDI..............................................................................PETITIONER
VERSUS
REPUBLIC …...........................................................................................RESPONDENT
R U L I N G
GAFAR ODONGO IDI, the petitioner herein, has brought this application under Article 50(6) of the Constitution seeking a fresh trial. The applicant was together with others not parties to the application, charged with the counts of robbery with violence contrary to Section 296(2) of the Penal Code before Chief Magistrate's Court Kisumu. They faced a fifth count of impersonating a police officer. After a full trial they were on 9th March, 2006 convicted and sentenced to death for the offence of robbery with violence and a prison term of 12 months for impersonating.
Being dissatisfied with decision of the trial court, the petitioner appealed to the High court and later filed a 2nd appeal to the Court of Appeal wherein his appeals were dismissed by he two courts. The applicant has now come to this court seeking a fresh trial basing his application on the ground that new and compelling evidence has now become available to him. The evidence that the petitioner intends to produce as new and compelling evidence is the Occurrence Book report of Obunga Police Post where the initial report was made.
A person who has been convicted and has exhausted all the appeals has the right under Article 50(6) of the Constitution to seek a fresh trial if he meets the threshold laid out therein. A perusal of the trial court record divulge that these OB reports were available to the court at the time of trial yet they did not influence the courts decision. The Supreme Court of Kenya in TOM MARTINS, KIBISU VRS REPUBLIC [2014] eKLR has stated that compelling evidence must be of probative value, capable of belief and which if adduced at trial could have led to a different verdict.
The evidence intended to be produced by the applicant in this case does not introduce any new information that is not already in the Court's knowledge and which would persuade it to hold that the two Superior Courts erred in their decisions.
Based on the above rendition, the application is dismissed
Dated, signed and delivered this 8th day of March, 2016.
H. K. CHEMITEI E. N. MAINA
J U D G EJ U D G E
In the presence of:
….............................for state
…...............................for petitioner