[2018] KEHC 9205 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISC. CRIMINAL APP. NO. 338 OF 2016

GEOFFREY NDUNGU NJUNGE..........................APPLICANT

VERSUS

REPUBLIC...........................................................RESPONDENT

RULING

Geoffrey Ndungu Njunge, lodged the present application by way of Chamber Summons urging this court to exercise its judicial authority and direct that the matter be amenable to alternative dispute resolution as set out in Article159(2)(c) of the Constitution. In summary his case is that he has since reconciled with complainant in the trial and as a result the complainant is willing to withdraw the complaint against him. In support of the application he annexed two supporting affidavits sworn by one Gerald Gitau Kiguru and himself. Mr. Kiguru deponed that he was the complainant in Criminal Case No. 8566 of 2014 at the Kibera Law Courts in which the Applicant was charged and convicted. He deposed that he reconciled with the Applicant after he learnt that he (Applicant) was an orphan and was involved in crime due to lack of guardianship and poverty. Further that since he had reconciled with the Applicant he was ready to appear in court to settle the matter. In view thereof he sought the court’s leave and advice on the applicability of the reconciliation.

The Applicant deponed that he was the accused in the aforestated criminal case in which he was charged with the offence of robbery with violence and convicted on 15th December, 2005. He swore that there were new developments in the matter as the complainant was willing to reconcile pursuant to Article 159(2) of the Constitution. He sought the court’s advice on the applicability of Article 159(2)(c) in light of the developments.

Also annexed to the application was a letter reference number KAR/ADM/VOL 1/016, from the Chief’s office, Karai Location, signed by one E. N. Mburu which reflected that the Applicant was pushed into crime by circumstances of life, namely harsh living conditions.

The application was canvassed before me on 27th November, 2017 with the Applicant representing himself whilst learned State Counsel, Ms. Akunja acted for the State/Respondent. In addition to the averments in the respective supporting affidavits, the Applicant conceded that his case had scaled through the entire appeal process beginning with the High Court and then the Court of Appeal without success. He urged the court that in spite of losing in the appeal process, since he had reconciled with complainant, the court could consider the case being referred to the trial court for a withdrawal.

Ms. Akunja opposed the application on the basis that the court was functus officioin the matter, the same having gone through the process of appeal both at the High Court and the Court of Appeal. She submitted that the Applicant’s appeals to the High Court and the Court of Appeal were dismissed and that reconciliation was not available to him at this stage. She concluded by urging that the application be dismissed.

In reply the Applicant urged the court to make an objective decision.

Determination

The Application before this court is quite novel. To ably determine it, the court must interrogate the relevant Article of the Constitution under which it was lodged. Article 159(2)(c) states:

(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles:

(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause(3);

(3) Traditional dispute resolution mechanisms shall not be used in a way that -

(a) contravenes the Bill of Rights

(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or

(c) is inconsistent with this Constitution or any written law.

It is clear that the Constitution does indeed advocate for the promotion of alternative dispute resolution mechanisms including reconciliation which the Applicant now seeks. Ms. Akunja however, submitted that notwithstanding the reconciliation between the parties the court was not in a position to entertain the application as it had been rendered functus officioonce the Applicant’s appeals were dismissed. This court is of a similar opinion. This is because the court has already had its opportunity to determine the dispute as a first appellate court in upholding the Applicant’s conviction. The issues placed for determination at that point include the determination as to the guilt or otherwise of an Appellant. The question of reconciliation does not play in at all especially in serious offences as in the instant case.

Nonetheless, the court is also aware that where a convicted person has exhausted his right to appeal he may still approach this court under the provisions of Article 50(6) of the Constitution which states that:

(6) A person who is convicted for a criminal offence may petition the High Court for a new trial if -

(a) the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for the appeal; and

(b) new and compelling evidence has become available.

Thus, this court can only entertain an application under the above provision if it is convinced that a retrial is necessary if “new and compelling evidence is available.” Whilst reconciliation is commendable, it does not meet the threshold of compelling evidence that justifies a retrial. The rationale for this proposition is that the factors for consideration in upholding that parties have reconciled would not affect the determination of the guilt or otherwise of an Applicant. Simply stated, as in the instant case, the court would not be aided to determine whether the Applicant committed the offence of robbery with violence. Instead, reconciliation if considered favorably terminates a trial before evidence is adduced and considered as a determinant of the guilt or otherwise of an accused. Respectively therefore, reconciliation can only be considered at the trial stage and not after the appeal process has been exhausted. It is therefore rightful and legal to argue that at this stage the court is functus officio in the dispute at hand.

However, all is not lost for the Applicant as the court being aware of the Supreme Court’s finding in Francis Karioki Muruatetu & another v.Republic[2017] eKLRthe Applicant can seek re-sentencing hearing.

The total sum of my finding is that the application is dismissed with no ordered as to costs. It is so ordered.

Dated and Delivered at Nairobi This 13th February, 2018.

G.W.NGENYE-MACHARIA

JUDGE

In the presence of;

1. Applicant in person.

2. Mr. Ondimu for the Respondent.