[2013] KEHC 5212 (KLR)
The court found that the applicant failed to present any new and compelling evidence as required under Article 50(6) of the Constitution to justify an order for retrial. The issues raised regarding the trial being conducted by two magistrates and the rank of investigating officers were either previously available...
Source-derived case information.
- Citation
- [2013] KEHC 5212 (KLR)
- Parties
- Applicant: John Amarere Swati; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 141 of 2012
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Retrial
- Outcome
- application dismissed
- Legal Topics
- Retrial Applications, New and Compelling Evidence, Section 200 Criminal Procedure Code, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Amarere Swati
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Retrial
Legal Issues
- 1 Whether the applicant has presented new and compelling evidence to warrant an order of retrial under Article 50(6) of the Constitution.
- 2 Whether non-compliance with Section 200 of the Criminal Procedure Code constitutes new evidence justifying a retrial.
- 3 Whether the rank of investigating officers or familial relationship of witnesses affects the validity of the conviction.
Ratio Decidendi
The court found that the applicant failed to present any new and compelling evidence as required under Article 50(6) of the Constitution to justify an order for retrial. The issues raised regarding the trial being conducted by two magistrates and the rank of investigating officers were either previously available for appeal or not legally sufficient to constitute new evidence. The familial relationship of witnesses does not, by itself, invalidate a conviction. The application was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application dated 2nd October 2012 is hereby dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
Miscellaneous Criminal Application 141 of 2012 [if gte mso 9]><xml>
Normal 0
false false false
SW X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]
JOHN AMARERE SWATI ......................................................... APPLICANT
V E R S U S
REPUBLIC .............................................................................. RESPONDENT
R U L I N G
In his application dated 2nd October 2012 the applicant is seeking the court to grant an order of re-trial. The application is made under Articles 50(6) and 165 of the Constitution. The applicant states in his supporting affidavit and did reiterate in his submissions during the hearing of the appeal that his case was handled by two magistrates and therefore the trial was not fair. Section 200 was not complied with. He also contends that the two investigating officers were of the rank of corporals who had no police rank. Lastly, that all the witness were from the same family.
The State opposed the application stated that the applicant has not raised any new and compelling evidence.
The proceedings show that the applicant was charged before the Kakamega CMC Criminal Case number 1161 of 2004. He was sentenced to death. He filed an appeal, vide High Court Criminal Appeal number 19 of 2005 and it was dismissed presumably by a bench of two judges. The applicant state that there is new evidence and cites Kakamega Criminal Case number 834 of 2004. It is not stated what that new evidence is. The fact that the case was heard by two magistrates is not new evidence. The Two Judge High Court bench had the opportunity to find out whether Section 200 of the Criminal Procedure Code was complied with. The applicant had an opportunity to raise that issue. There is no legal provision that a case cannot be proved if the witnesses are from the same family. Similarly, there is no legal provision barring police corporals from conducting investigations in criminal case even if the cases involve robbery with violence.
In the end, I do find that there is no new and compelling evidence to warrant an order of retrial. The applicant is free to pursue an appeal before the Court of Appeal. The application dated 2. 10. 2012 is hereby dismissed.
Delivered, dated and signed at Kakamega this 31st day of January, 2013
SAID J. CHITEMBWE
J U D G E