[2017] KEHC 7138 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

MISC. CIVIL APPLICATION NO. 28 OF 2011

JOHN KAMAU WAMATU..................................................APPLICANT

VERSUS

REPUBLIC.......................................................................RESPONDENT

RULING

FACTS

1. The applicant was charged with the offence of robbery with violence contrary to Section 296(1) of the Penal Code in Nyeri Chief Magistrates Court Criminal Case No. 2112 of 2004; he was tried and convicted and sentenced to the mandatory death sentence; he appealed to the Nyeri High Court vide HCRA No. 205 of 2005 and subsequently appealed to the Nyeri Court of Appeal vide Nyeri Court of Appeal Criminal Appeal No.68 and 98 of 2008; both appeals were disallowed and the conviction and sentence affirmed; he then filed an application to this court on the seeking to quash the conviction on the premises that new and compelling evidence has emerged.

2. The application was brought by way of an Amended Chamber Summons dated 19th August, 2016 made under the provisions of Articles 50(6) and 20(2) of the Constitution of Kenya 2010 and all other enabling provisions of the law; the Applicant prayed for the following Orders;

a. That this Honourable Court be pleased to quash the conviction in the Nyeri Chief Magistrates Court Criminal Case No.2112 of 2004.

b. That this Honourable Court be pleased to grant an order of acquittal under Article 50(6) of the Constitution of Kenya 2010.

3. The Applicant relied on the grounds on the face of the Petition and the Supporting Affidavit made by the applicant and dated the 19th August, 2016.

4. At the hearing hereof learned counsel Mr Ombongi appeared for the applicant and Mrs. Gicheha appeared for the State and both Counsels made oral submissions;

5. Hereunder are the parties rival submissions;

APPLICANTS SUBMISSIONS

i. The Petitioner seeks an order quashing the conviction as there is new and compelling evidence that has emerged; attached to the Petition is the affidavit of FAZAL HUSSEIN (PW1) who was the complainant in the subordinate court and the victim of the robbery;

ii. The evidence that is new and compelling is that the complainant states that he was not invited to attend an identification parade to confirm his ability to identify the petitioner as he had alleged in court on the 19/08/2004; that he then would have had a clearer picture of the persons who attacked him on that fateful night.

iii. The complainant is categorical that he did not identify the applicant at his shop on the 12/06/2004 as the had alleged in his testimony in court on the 19/08/2004; that he disclosed to the applicant through his family members that at the time of the robbery he was too confused, emotional and terrified to the extent that it affected his testimony; that hie testimony was based on emotions;

iv. He had said in his testimony he had portrayed the applicant as the one who had the gun; that his testimony was not accurate as it was clouded with anger; his conscience and religion has since prevailed upon him to come out and state the truth;

v. Counsel’s contention is that it this doubtful evidence of the Complainant in the subordinate court occasioned the conviction of the petitioner; that the other witnesses only corroborated the complainants evidence; that PW2 the wife of the complainant was not able to identify the attackers; that this confirms that the identification was dock identification; that there exists reasonable doubt as to the identity of the assailants of the complainant; and had the subordinate court had this compelling evidence it would not have found him guilty;

vi. The applicants prayer was for this court to invoke its power under the provisions of Articles 50(6) and Article 20 and not to order for a retrial but to quash the conviction in Nyeri CMCCR.C No.2112 of 2004 and grant an order for acquittal;

RESPONDENTS SUBMISSIONS

i. In response the Respondent relied on its Replying Affidavit; that the provisions of Article 50(6) do not support a provision for the prayer sought for an acquittal; the prayer sought is misconceived in law; the provision envisages a NEW TRIAL for a successful petitioner;

ii. The new and compelling evidence must be recent in origin and recently discovered and was not known or available at the time of trial or at the hearing of the appeals; and could not be obtained even after due diligence was exercised by the applicant; the applicant must demonstrate that the new evidence is admissible and credible and not merely corroborative; and must also demonstrate that new evidence available is strong and convincing enough to persuade a new trial court to reach an entirely different decision than that already reached; Counsel relied on the case of Wilson Thiriba Mwangi vs DPP JR No.271 of 2011 (Nairobi) and to several other authorities;

iii. Counsel submitted that the complainant’s deposition was questionable; that the case was heard two months after the incident and that his memory must have been still fresh; that he is now recanting on his evidence but was doing so twelve (12) years after the matter was heard and concluded; that it beats logic that the complainant now realizes that he gave wrong evidence; that he may have been comprised to give this different version;

iv. That the issue of identification was central to the determination of the case and is not new; that the conviction in the lower court was not solely based on the complainant’s evidence but also on the evidence of Peter Kavile Njau PW3; Counsel pointed out that the incident took place at 10. 00am in broad daylight contrary to the submissions made by the applicants Counsel that the incident had taken place at night; that the applicant was positively identified by PW3 who the courts termed as a key witness was an employee of the complainant; he testified to being outside the shop on the material date and witnessed the robbery; PW3’s evidence was that the applicant was the one who had carried the big gun; that when the robbers made away in their get- away-car he followed them in his employers car to their hide-out;PW3 also testified to having attended an Identification Parade and to having picked out the applicant; his evidence was corroborated by the Investigating Officer (PW5) who testified on how they intercepted the applicant and his accomplices at the hideout as they were going to stage another robbery in Endarasha;

v. That the applicant was properly convicted on the evidence of PW3 which was corroborated by the evidence of PW1, PW4 and PW5; that the applicant’s application has no basis and should not succeed as there are no new and compelling reasons or evidence.

REJOINDER

vi. The affidavit of the complainant made after twelve (12) years but there is no limitation in law; that if the complainant perjured himself the prosecution was at liberty to have him cited; that the primary evidence was that of PW1 and not PW3 and therefore the evidence of PW3 ought to corroborate that of PW1.

vii. Counsel urged the court to allow the application.

ISSUES FOR DETERMINATION

6. Taking into consideration the above submissions this court has framed the following issues;

i. Whether there is new and compelling evidence that has emerged after the conviction was affirmed;

ii. Whether an order for retrial or an acquittal is merited.

ANALYSIS

7. The evidence on identification was central to the conviction of the applicant; the lower court found that the applicant was positively identified and both appellate courts affirmed the lower courts’ decision;

8. Having perused the record this court notes that the Court of Appeal in its judgment makes a cursory remark of the evidence of PW1 on identification is that;

“PW1 his wife and the customer were not able to identify any of their attackers.”

9. The key witness in the lower court and the two appellate courts was PW3;his evidence on identification was that at the time of the robbery he was outside the shop talking to a relative who had come to see him; he saw three men leave his employers shop; that is saw three men leave his employers shop and walk towards a white Toyota Corolla E90 car with a red spoiler at the back; he was able to observe their facial appearances momentarily |at the time they turned to enter the car; that he pursued the robbers as they escaped in their car using his employer’s motor vehicle;

10. The applicant it is stated participated in an Identification Parade and was picked out by PW3; and that PW4 corroborated the evidence of PW3 on identification; the trial court found that PW3 positively identified the applicant and proceeded to convict him on the strength of this evidence;

11. The applicants ground of appeal to the High Court was on identification; his claim was that the evidence was fabricated, contradictory flimsy and uncorroborated and was therefore insufficient to support a conviction; and that the identification parade conducted by PW4 had no basis and was not properly conducted; the court dismissed this first appeal and found that the Identification Parade had been properly conducted and the applicant positively identified;

12. Likewise the applicants main ground of appeal to the Court of Appeal was on identification; the court described PW3 as the key witness and found that PW3 was properly believed by the two courts below; that the circumstances favoured a correct identification; and that there was a basis for conducting the Identification Parade and that it was properly conducted; and proceeded to dismiss the appeal;

13. From the above narrative it is clear that the evidence on identification is not new; that even if the evidence of the complainant on identification was not considered by the trial court the applicant would still have been convicted; that at all times the key witness was PW3;that even if identification was that of a single identifying witness there was other evidence both direct and circumstantial evidence that pointed to the guilt of the applicant; the incident also occurred at 10. 00am in broad daylight and the trial court and the appellate courts all made a finding that the conditions were favourable for positive identification; the applicant was convicted on the strength of the evidence of this witness which conviction was affirmed by the two appellate courts;

14. This court finds that the applicant has failed to demonstrate that there is any new and compelling evidence that he has made available on identification that is admissible and credible; that there is no new evidence which can persuade a new trial court to reach an entirely different decision than that already reached;

FINDINGS AND DETERMINATION

15. For the forgoing reasons this court finds that there is no new and compelling evidence as envisaged under Article 50(6) that has become available; and finds that this not a suitable case for this court to grant the orders sought.

16. The application is found to be lacking in merit and is hereby dismissed;

Orders accordingly.

Dated, Signed and Delivered at Nyeri this 2nd day of February, 2017.

HON.A.MSHILA

JUDGE