[2011] KEHC 2462 (KLR)
The court found that the applicant fell within the category of persons eligible to petition for a new trial under Article 50(6)(a) of the Constitution, as his appeal had been determined by the highest court. However, the applicant failed to demonstrate the existence of any new and compelling evidence as required by...
Source-derived case information.
- Citation
- [2011] KEHC 2462 (KLR)
- Parties
- Applicant: Jacob Kosgei Kayab; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 13 of 2011
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Enlargement of Time to Appeal and for New Trial
- Outcome
- application dismissed
- Legal Topics
- Right to Fair Trial, New and Compelling Evidence, Post Conviction Review, Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Kosgei Kayab
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Enlargement of Time to Appeal and for New Trial
Legal Issues
- 1 Whether the applicant has demonstrated the existence of new and compelling evidence to warrant a new trial under Article 50(6) of the Constitution.
- 2 Whether the applicant is entitled to enlargement of time to lodge an appeal based on alleged violations of fundamental rights.
Ratio Decidendi
The court found that the applicant fell within the category of persons eligible to petition for a new trial under Article 50(6)(a) of the Constitution, as his appeal had been determined by the highest court. However, the applicant failed to demonstrate the existence of any new and compelling evidence as required by Article 50(6)(b). The grounds advanced by the applicant related to alleged procedural and evidentiary irregularities during his trial and appeal, but did not amount to new evidence that was not previously available. The court emphasized that the constitutional threshold for reopening a criminal case is stringent, requiring not only fresh evidence but also that such evidence be...
Court Disposition
application dismissed
Orders
- The application for enlargement of time to lodge an appeal and for a new trial is dismissed.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
MISC. CRIMINAL APPL. NO. 13 OF 2011
JACOB KOSGEI KAYAB.............................................................................................................APPLICANT
=VERSUS=
REPUBLIC..................................................................................................................................RESPONDENT
RULING
By his application lodged on 11th April, 2011, Jacob Kosgei Kayab, (hereinafter, (“the applicant”),seeks enlargement of time to lodge an appeal. He has invoked the provisions of chapter four (4) Articles 19, 20 (3) & (4), 21 (1), 22 (1) (3) and (4), 23 (1), 50 (1), (4), (6) and 9 of the Constitution of Kenya. Section 19 of the sixth schedule as read together with rule 23 of the Constitution of Kenya (Supervisory Jurisdiction and protection of human rights and freedoms of the individual-High Court Practice & Procedure Rules - 2006), are also invoked.
The application is predicated upon the following grounds:-
(1)That his fundamental rights were violated because the manner in which the evidence was obtained would render the trial unfair and detrimental to the administration of justice.
(2)That his fundamental rights were violated as the post-mortem form which was availed before the court was a carbon copy, hence there was no reason given as to why the original could not be produced.
(3)That his fundamental rights were violated as some of the crucial witnesses were not called.
(4)That his fundamental rights were violated as the appellate court convicted him on contradictory evidence.
(5)That his defence was not considered.
(6)That the assessors were not given a chance to give their verdict.
(7)That the facts of the case disclosed the offence of manslaughter, yet he was tried for murder.
In the affidavit in support of the application, the applicant has deponed, inter alia, that he was tried, convicted and sentenced to death in Criminal case No. 22 of 2004 at Kitale for the offence of murder; that his appeal to the Court of Appeal was allowed and the conviction for manslaughter substituted for that of murder; that he was then sentenced to 15 years imprisonment and that article 22 (1) of the new Constitution allows the re-opening of the case, hence the application.
When the application came up before me for hearing on 5th May,2011, the applicant relied upon the grounds of his application and the supporting affidavit. Mr. Oluoch, the learned Senior Deputy Prosecution Counsel, opposed the application on the main ground that the applicant had not demonstrated that new and compelling evidence has become available.
I have considered the application, the supporting affidavit and counsel’s submission in opposition thereto. Having done so, I take the following view of the matter. This application is primarily predicated under Article 50 (6) of the Constitution which reads as follows:-
“(6) 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 is the kind of person envisaged in sub-section 6 (a) above. For his intended appeal to have any chances of success he had to demonstrate that
“new and compelling evidence has become available”
Having gone through the entire application and the supporting affidavit, there is no suggestion that any new and compelling evidence has become available. The applicant has moved the court merely because the Constitution makes provision for a new trial. The threshold set by the Constitution is very high and it is not enough that a person has the right to move the High Court for a new trial. There must not only be fresh evidence but the new evidence must be compelling. The applicant has not demonstrated that such is the case here.
In the premises, I do not find any merit in the application. The same is dismissed.
DATED AND DELIVERED AT ELDORET THIS 16TH DAY OF JUNE, 2011.
F. AZANGALALA
JUDGE
Read in the presence of:-
1. Jacob Kosgei Kayab, the applicant in person and
2. Mr. Oluoch, Senior Deputy Prosecution Counsel for the State.
F. AZANGALALA
JUDGE
16/6/2011