[2017] KEHC 7893 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NANYUKI

CRIMINAL PETITION NO. 1 OF 2015

JACKSON GITONGA IBUURI…………….......…………………APPELLANT

versus

REPUBLIC………….……………………….......……….……RESPONDENT

JUDGMENT

1. JACKSON GITONGA IBUURI, the petitioner, has petitioned this court invoking Article 50(6) of the Constitution. He seeks an order for a new trial.

BACKGROUND

2. The petitioner was convicted before the Nanyuki acting Senior Resident Magistrate on three counts. On the first count he was charged with the offence of attempted robbery contrary to section 297(2) of the Penal Code, Cap 63. On the second and third counts he was charged with the offences of robbery with violence contrary to section 296(2) of Cap 63. He was convicted on all counts before that court and was sentenced to suffer death. Being aggrieved by that conviction and sentence he appealed before the High Court being Criminal Appeal No. 231 of 2005at Nyeri High Court. The High Court upheld the trial court’s conviction and sentence. The appellant filed an appeal against the judgment of the High Court before the Court of Appeal at Nyeri being Criminal Appeal No. 235 of 2008. The court of Appeal dismissed his appeal.

3. The facts of the case were that on 5th April 2005 at about 11. 40 a.m. Edwin Malcom Homes (Edwin), a dairy farmer in Equator area was driving his vehicle on his way back to his farm having sold his milk in Nanyuki town. A man waved him down and engaged him in a conversation on whether he wanted to buy a cow. As they conversed two other men appeared from the bush and at that point the first man removed the ignition keys from Edwin’s car. One of those who came from the bush had a weapon. He commanded Edwin’s passenger to get out. On him getting out he began to search the pockets of Edwin and his passenger. It was at that point that Edwin realized that the weapon, a pistol, was not genuine. On realizing that he snatched the ignition keys from the man who first stopped them. He drove away to his from leaving behind his passenger, who was also his employee.

4. That employee was left behind with the robbers who proceeded to rob him. Edwin returned on the scene very shortly after with more employees. They began to chase the robbers and one of those robbers hid in a house which was soon surrounded by Edwin, his employees and a crowd that had gathered due to the commotion. The person in the house was eventually arrested by the police who arrived later. That person was the petitioner.

PETITION

5. In his ‘home made’ petition, in the form of an affidavit the petitioner has raised three grounds which he says raise new evidence. He stated in those grounds that:-

(i) The language of the court was not indicated at the

time plea was taken;

(ii) Edwin’s evidence was tendered in English language

and was not interpreted; and

(iii) the trial court’s judgment was not in compliance

with section 169(1)(2) of the Criminal Procedure

Code, Cap 75.

6. The petitioner seeks an order for a new trial on reliance to the Article 50(6)(a)(b) of the constitution. That Article provides:-

“A person who is convicted of a criminal offence may petitioner 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.

C. Mwita J. in the case ERNEST OTIENO KEYA & ANOTHER v REPUBLIC (2015)eKLR sought to define the term ‘new and compelling evidence’ viz:-

“New and compelling evidence has been defined by the Supreme Court in the case of Tom Martins Kibisu vs Republic (2014) eKLR as follows:-

“We are in agreement with the Court of Appeal that under Article 50(6) ‘New evidence’ means ‘evidence which was not available at the time of trial and which despite exercise of due diligence could not have been availed at the trial’, and ‘Compelling evidence’ implies ‘evidence that would have been admissible at the trial, of high probative value and capable of belief, and which, if adduced at the trial could probably have led to a different verdict.”

The learned Judge still referring to that case further stated:-

“A court considering whether evidence is new and compelling for a given case, must ascertain that it is, prima facie, material to, or capable of affecting or varying the subject charges, committal trial process, the conviction entered or the sentence passed against the accused person.”

7. Justice R. Sitati also considering the provisions of Article 50 (6)(a) and (b) stated thus, in the case RODGERS ONDIEK NYAKUNDI & 2 OTHERS V STATE (2012) eKLR:-

“It is now well settled that petition (or application in this case) under Article 50(6) is not a re-trial or an appeal and that the court to which such petition or application is made has ‘no jurisdiction to consider and determine matter which has already been decide upon by the Court of Appeal.’ The only duty this court has to fulfill is to see whether there is anynew and compellingevidence to warrant an order for retrial. The applicant’s desire in this case is that the case be heard afresh so that all the evidence is placed before the court, including specimen evidence though he does not specify what the evidence is. There is no doubt that the applicant had every opportunity to apply to adduce fresh evidence before or at the hearing of his appeal. He could also have made such an application to the Court of Appeal. The door was closed and this court has no power to re-open it.”

8. Janet Mulwa J. sounded a caution in the application of Article 50(6) in the case Geoffrey Mwangi Githinji vs Republic (2015) eKLR where the judge stated:-

“The Court of Appeal has called for exercise of caution when considering an application for review bases on discovery of new and fresh evidence. In D. L. Lowe & Co. Ltd – vs – Bangue Indosuez – Civil Application No. Nai 217 of 1998 (unreported) it was observed:-

“Where such a review application is based on fact of the discovery of fresh evidence the court must exercise greatest care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strength that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing.”

9. Going by the definitions well articulated in the cases above it becomes clear that the three issues raised in the petitioner’s petition are not at all new or compelling. By the time the petitioner first appeal was heard the fact that the language of the court was not indicated at the time of plea was obvious. The same thing can be said of the petitioner’s allegations in respect to the provisions of Section 169(1)(2) of Cap 75, in regard to the trial court’s judgment. All the issue raised in this petition are not new. As stated in the case above RODGERS ONDIEK NYAKUNDI (supra), a petition under Article 50(6) is not a retrial. The petitioner by raising the three issued above seeks, in my view, a retrial of his case of issues that were before the courts that entertained his appeals.

10. With those above observations notwithstanding I will consider the issues raised by petitioner. On the first issue, where the petitioner stated that the language of the court was not indicated when he took plea, it ought to be noted that the petitioner pleaded not guilty and therefore the fact the language of the court was not indicated was immaterial. There was therefore no prejudice. The second issue he raised was that the evidence of Edwin, which was in the English language that it was not interpreted. He did not state interpreted into which language. The petitioner was represented by learned counsel Mr. Ombachi. Mr. Ombachi conducted extensive cross examination of the witnesses who testified. It follows that Mr. Ombachi obtained instructions from the petitioner which instructions he used in cross examination. In my view, again, the petitioner did not suffer injustice when Edwin testified in English. The third issue was on the ground that the trial court’s judgment did not comply with the provisions of section 169(1) and 2 of Cap 75. I have perused the trial court’s judgment and I find the same complied with section 169(1), since it was written in English, which is the language of the court. It also complied with section 169(2) of Cap 75 in that the trial magistrate specified the offence and section under which the petitioner was convicted.

11. It follows that there is no merit in the petition since the petitioner failed to bring forward any new and compelling evidence. I share the sentiment of S. J. Chitembwe J. where the learned Judge was faced with a petition under Article 50(b). The learned judge in the case ADHAN NASSIR v DIRECTOR OF PUBLIC PROSEUCTIONS (2016) eKLR stated this:-

“The proliferation of constitution petitions abased on Article 50(6) of the constitution makes Judicial Officers to spend more time on unnecessary litigation. This cannot be justified as pursuit of constitutional rights. There is no violation of the petitioner’s constitutional rights. The only avenue convictees have is Article 50(6) of the Constitution and it should be utilized upon the discovery of new and compelling evidence. Merely throwing applications to the High Court in the hope that the court will favour the petitioners is abuse of the court process. It has now become normal for an accused to exhaust the appeal process and thereafter file a petition under Article 50 or other Articles of the Constitution alleging breach of their rights.”

12. In view of the above findings the petitioner’s petition is dismissed with no order as to costs.

DATED AND DELIVERED THIS 7TH DAY OF FEBRUARY 2017.

MARY KASANGO

JUDGE

CORAM

Before Justice Mary Kasango

Court Assistant: Njue

Petitioner: Jackson Gitonga Ibuuri ………………………

For the State: ….................................................

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE