[2012] KEHC 172 (KLR)
The court found that the applicant's appeal had not been dismissed by the highest court to which he was entitled to appeal, nor had he demonstrated that an application to appeal out of time had been unsuccessful. Furthermore, the applicant failed to present any new and compelling evidence as required by Article...
Source-derived case information.
- Citation
- [2012] KEHC 172 (KLR)
- Parties
- Applicant: Godfrey Shimonyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 88 of 2012
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Retrial After Conviction and Dismissal of Appeal
- Outcome
- application dismissed
- Legal Topics
- Retrial Applications, New and Compelling Evidence, Post Conviction Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Godfrey Shimonyo
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Retrial After Conviction and Dismissal of Appeal
Legal Issues
- 1 Whether the applicant is entitled to a retrial under Article 50(6) of the Constitution.
- 2 Whether new and compelling evidence has become available to justify a retrial.
- 3 Whether the interests of justice require an order for retrial in the circumstances.
Ratio Decidendi
The court found that the applicant's appeal had not been dismissed by the highest court to which he was entitled to appeal, nor had he demonstrated that an application to appeal out of time had been unsuccessful. Furthermore, the applicant failed to present any new and compelling evidence as required by Article 50(6) of the Constitution. The court also considered the principles governing retrials and found no procedural irregularities or miscarriage of justice that would warrant a retrial. Consequently, the application for retrial lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for retrial is dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
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GODFREY SHIMONYO ......................................... APPLICANT
VERSUS
REPUBLIC ........................................................ RESPONDENT
R U L I N G
The applicant, GODFREY SHIMONYOwas convicted and sentenced to death for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. The applicant’s appeal to the High Court was dismissed on 23. 2.2011.
The applicant subsequently applied for a retrial vide his application dated 18. 6.12.
The ground of the application is that re-trial has high chances of success.
Mr. Oroni, the State Counsel opposed the application on the ground that it has not been explained what the new evidence is.
Article 50 (6)of the Constitution provides as follows:-
“A person who is convicted of 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 appeal, and
(b)new and compelling evidence has become available.”
The applicant’s appeal has not been dismissed by the highest court to which he is entitled to appeal. If the applicant did not appeal within the time allowed for appeal, he has not demonstrated that his application to appeal out of time has not been successful. There is also no new and compelling evidence that has become available.
In addition to the Constitution, I have considered the Principles to be applied when considering whether or not to order a retrial as re-stated by the Court of Appeal in the case of BERNARD LOLIMO EKIMAT VS R. CA NO.151 OF 2004 (ELDORET).
“There are many decisions on the question of what appropriate case would attract an order of retrial, but on the main the principle that has been acceptable to court is that the case must depend on the particular facts and circumstances of that case but an order for retrial should only be made where interests of justice required it.”
In the instant case, after considering the issues raised by the applicant, I have not seen any procedural irregularities that go to the core of the matter and can be said to have occasioned a miscarriage of justice.
The application has no merits and is dismissed.
Delivered, dated and signed at Kakamega this 19th day of December, 2012
B. THURANIRA JADEN
J U D G E