[2018] KEHC 6383 (KLR)
The court found that the petitioner had not produced any new and compelling evidence to warrant a retrial under Article 50(6) of the Constitution. However, in light of the Supreme Court's decision declaring the mandatory death sentence unconstitutional, the court reviewed the circumstances of the offence and the...
Source-derived case information.
- Citation
- [2018] KEHC 6383 (KLR)
- Parties
- Petitioner: Gregory Mutuma Mbaka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition 14 of 2016
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition partly allowed
- Legal Topics
- Right to Fair Trial, New and Compelling Evidence, Death Penalty, Resentencing, Article 50 6, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gregory Mutuma Mbaka
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner has presented new and compelling evidence to warrant a retrial under Article 50(6) of the Constitution.
- 2 Whether the mandatory death sentence imposed on the petitioner should be set aside in light of the Supreme Court's decision declaring it unconstitutional.
- 3 Whether the petitioner should benefit from resentencing based on the Supreme Court's interpretation.
Ratio Decidendi
The court found that the petitioner had not produced any new and compelling evidence to warrant a retrial under Article 50(6) of the Constitution. However, in light of the Supreme Court's decision declaring the mandatory death sentence unconstitutional, the court reviewed the circumstances of the offence and the period the petitioner had already spent in custody. The court determined that the petitioner should benefit from the Supreme Court's interpretation and resentenced him to 20 years imprisonment, setting aside the death sentence. The 20-year sentence was ordered to run from the date of the judgment.
Court Disposition
petition partly allowed
Orders
- The death sentence imposed on the petitioner is set aside.
- The petitioner is resentenced to serve 20 years imprisonment from the date of this judgment.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
PETITION NO. 14 OF 2016
GREGORY MUTUMA MBAKA........................PETITIONER
VERSUS
REPUBLIC...........................................................RESPONDENT
JUDGEMENT
Gregory Mutuma the petitioner herein sought by a petition filed on 16th September 2016 seeking to be referred back to the Magistrates court for retrial as provided under Article 50(6) of the Constitution of Kenya 2010 as he had discovered view and compelling evidence which he intended to adduce and which he believed if heard can change the whole verdict of the lower court, the High Court and Court of Appeal.
In his submissions the petitioner urged the court to rely on the Supreme court of Kenya petition No. 15 and 16 of 2015 which declared the mandatory nature of the death sentence unconstitutional. He analysed the evidence that was already tendered in the trial court.
The Respondent through Mrs Mwathi, it was submitted that the petitioner had a duty to produce new and compelling evidence to warrant an order for retrial under Article 50(6) of the Constitution but there is no affidavit by the alleged PW4 who in the trial said categorically that he identified petitioner who robbed him.
It was submitted while relying on the authority of Peter Manson Okeyo vs Republic (2014) eKLR that the new and compelling evidence must be shown to be favourable to the petitioner and must also persuade the court to reach an entirely different decision from the 2 already reached by the 2 appellate courts.
That the evidence must be admissible, credible, cumulative and/or impeaching. Further that the evidence must not have been available during trial or could not have been obtained with reasonable intelligence or due diligence for use at trial. Mrs Mwathi urged the court to dismiss the petition.
Indeed the petitioner has not attempted to produce any new evidence at all and this petition cannot be sustained.
However, in view of the Supreme Court of Kenya finding in petitions No. 15 and 16 of 2015 this court has decided to consider the evidence in the lower court to consider whether circumstances of the offence warranted the punishment of death penalty or any other punishment could be meted out.
In consideration that the petitioner has been in custody for considerable period of time it is the opinion of this court that he should benefit from the interpretation of the Supreme court in petitions No. 15 and 16 of 2015. Petitioner is therefore resentenced to serve 20 years imprisonment. The death sentence is set aside. The 20 years to run from today’s date. Order accordingly.
HON. A.ONG’INJO
JUDGE
RULING SIGNED, DELIVERED AND DATED THIS 31ST DAY OF MAY 2018.
In the presence:
Petitioner: Present in person
Respondent: Mrs Mwathi for state.
Penina: C/A
Orders
Copy of judgment to be supplied to petitioner.
HON. A.ONG’INJO
JUDGE