[2018] KEHC 2507 (KLR)
The court held that it lacked jurisdiction to entertain the application for retrial under Article 50(6) of the Constitution because the applicant had not exhausted the appellate process by appealing to the Court of Appeal against the High Court's dismissal of his initial appeal. The court emphasized that it could...
Source-derived case information.
- Citation
- [2018] KEHC 2507 (KLR)
- Parties
- Applicant: Geoffrey Indunyi Were; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 72 of 2018
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Retrial Based on New and Compelling Evidence
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Defilement, Plea of Guilty, Fair Trial Rights, New and Compelling Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Indunyi Were
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Retrial Based on New and Compelling Evidence
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain an application for retrial under Article 50(6) of the Constitution after the applicant's appeal has been dismissed by a court of concurrent jurisdiction.
- 2 Whether the applicant has presented new and compelling evidence to warrant a retrial.
- 3 Whether the applicant was denied a fair trial due to alleged inducement to plead guilty.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the application for retrial under Article 50(6) of the Constitution because the applicant had not exhausted the appellate process by appealing to the Court of Appeal against the High Court's dismissal of his initial appeal. The court emphasized that it could not sit in review or appeal of a decision made by a court of concurrent jurisdiction. The application was therefore found to be fatally incompetent and an abuse of court process, as the proper procedure would have been to seek redress in the Court of Appeal, not by returning to the High Court with a new application under a different case number. The court further noted that the...
Court Disposition
application dismissed
Orders
- The application is dismissed as fatally incompetent and misconceived.
- The file is closed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
HC. CR. MISC. APP. NO. 72 OF 2018
(CORAM: R. E. ABURILI - J.)
GEOFFREY INDUNYI WERE.................................................APPLICANT
VERSUS
REPUBLIC..............................................................................RESPONDENT
(Being an Appeal against the Conviction and Sentence dated 13. 07. 2015 in Criminal Case No. 624 of 2015 at Bondo Law Courts, before Hon. M. Obiero, PM)
And
(A Subsequent Judgment that was made on 26. 11. 2015 in Criminal Appeal No. 69 of 2015 at Siaya High Court before Hon. Justice J.A. Makau, Judge)
RULING
The Application filed on 29/10/2018 by the Convict/Petitioner Geoffrey Indunyi, Were is brought under the provisions Article 50(6)(a)(b) of the Constitution and Articles 165, 23(1) of the Constitution of Kenya.
The Applicant claims by his grounds and annexed supporting affidavit that he was cheated by a police officer into pleading guilty to the charge of defilement wherein he was convicted and sentenced to serve 20 years imprisonment.
That he was therefore not accorded a fair trial and has nothing to do with the defilement charge. That he has new and compelling evidence and seeks for a retrial as he is in poor health.
The court observes that the Applicant cited a wrong case number from which he was convicted and sentenced and further cited a wrong appeal case number.
Upon this court ordering for the correct case file to be availed, it has now turned out to be that the applicant was on 13th July 2015 convicted and sentenced to serve 20 years imprisonment by the PM’s court at Bondo for the offence of defilement of a child contrary to Section 8(3) of the Sexual Offences Act. This was on his own plea of guilty in Bondo PM Cr. Case No. 624/2015 (not Siaya PM’s Cr. Case No. 624/2015).
Upon his conviction and sentence, the applicant filed an appeal vide Kisumu High Court Cr. Appeal No. 114/2015 challenging his conviction and sentence.
The said appeal, file was transferred to Siaya High Court and assigned a new case file number being Siaya HCRA No. 69 of 2015.
The said appeal was admitted to hearing on 30/9/2015 and heard on 13/11/2015 and judgment delivered on 26th November, 2015, the Learned Hon. Justice J.A. Makau dismissed the Appellant’s appeal both against conviction on his own plea of guilty and against the mandatory 20 year imprisonment sentence as stipulated in Section 8(3) of the Sexual Offences Act No. 3 of 2006.
That being the case, the Appellant could only have appealed against the judgment of Hon. J.A. Makau J, the Court of the Appeal and not to return to this court and allege that his rights were violated and or that he was not accorded a fair trial or that he has new and compelling evidence for reconsideration under Article 50(6) of the Constitution.
This court would only have jurisdiction under Article 50(6) of the Constitution if the applicant had challenged the decision of Makau J before the Court of Appeal and therefore the applicant had exhausted all the appeal mechanisms. To return to this court through a different case file number is to ask this court to sit on an appeal of the decision of a court of concurrent jurisdiction which is not permissible in law.
In the premise, I find and hold that the application before me is fatally incompetent and misconceived. It is an abuse of court process. The same is hereby dismissed and the file is closed.
Dated, Signed and Delivered at SIAYA this 2nd Day of November 2018.
R.E. ABURILI
JUDGE