[2017] KEHC 853 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

CRIMINAL APPLICATION NO 183 OF 2013

JOHN MURANGA KAMAU…..…………............PETITIONER

VERSUS

DIRECTOR OF PUBLIC PROSECUTIONS……RESPONDENT

J U D G M E N T

1. The Petitioner herein, John Muranga Kamau, was one of three persons convicted of capital robbery contrary to section 296(2) of the Penal Code in Murang’a SRM Criminal Case No 518 of 2005. He was sentenced to death as by law provided. He appealed to the High Court vide Nyeri HC Criminal Appeal No 72 of 2006. His appeal was dismissed by a judgment dated 02/10/2008. His second appeal to the Court ofAppeal videNyeri Criminal Appeal No 237 of 2008 was dismissed by a judgment dated and delivered on 01/12/2011.

2. The Petitioner then petitioned this court by petition dated 20/03/2017 under Article 50(6) of the Constitution of Kenya, 2010. That sub-article provides –

“50 (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.”

3. The Appellant’s second appeal against his conviction and sentence having been dismissed by the Court of Appeal, his right of appeal was thereby exhausted, and he is thus entitled as a matter of constitutional right to petition this court as he has under Article 50(6) aforesaid. The gravamen of his petition therefore is whether new and compelling evidence has become available.

4. The Court of Appeal, as reported in the Supreme Court case of Lt. Col. Tom Martins Kibisu -vs- Republic [2014] eKLR, defined new and compelling evidence to be –

“… evidence that was not available at the time of the trial or could not have been availed upon exercise of due diligence, and evidence sufficiently weighty that, if it (had been) available to the trial court or the appellate courts, the conviction would probably not have been sustained.”

5. The Supreme Court in the aforesaid case agreed with that definition in the following words –

“[42] 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, would probably have led to a different verdict.” 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, the criminal trial process, the conviction entered, or the sentence passed against an accused person.”

6. In the present case, what has the Petitioner placed before the court? In his petition he had contended as follows –

a. That his rights under Article 50(2) (c) and (j) of the Constitution of Kenya, 2010 were violated in that he was denied adequate facilities to prepare his defence in that he was neither informed in advance of the evidence the Republic intended to rely upon; nor was he allowed to have access to that evidence that he was not supplied with copies of witness statements or copies of documentary evidence.

c. That he was not promptly informed of his right to be represented by an advocate in contravention of his rights under Article 50 (2) (h) of the Constitution.

d. That new and compelling evidence has become available which is in the custody of the Respondent – to wit, “the initial report made at Saba Saba Police Post vide OB No 3/6/4/05 in that the said entry does (not) name the Petitioner as the perpetrator.”

7. As for the complaints under Article 50(2) (c), (h) &(j) of the Constitution of Kenya, 2010, the Supreme Court stated in the case of Samuel Kamau Macharia -vs- Kenya Commercial Bank Ltd & 2 others, SCK Application No.2 of 2012 [2012] eKLR, that the Constitution is not retrospective in its application. The Constitution of Kenya, 2010 was promulgated in August 2010. The Petitioner was tried and convicted in 2006.

8. Regarding new and compelling evidence, the Petitioner has not placed before the court the OB (Occurrence Book?) entry he says constitutes new and compelling evidence. He says it is in the custody of the Respondent. The learned counsel for the Petitioner conceded at the hearing of the petition that Occurrence Books at police stations/posts are public documents obtainable upon due application. He stated that he had not, as counsel, tried to obtain the OB entry now touted as new and compelling evidence. So what was this court expected to do? Go and get the OB entry for him?

9. As submitted by his own learned counsel, the Petitioner did not ask for production of the OB entry at his trial or his two appeals. Learned counsel further states that the Appellant, who was unrepresented, did not know of its existence until after his appeals. He does not know the contents of the OB entry, yet he asserts that he is not mentioned therein. How does he know that?

10. As pointed out by learned prosecution counsel, if the OB entry forming the basis of the petition herein is in existence, it must have existed during the Petitioner’s trial and two appeals. Why was it not sought then? What prevented the Petitioner’s learned counsel obtaining a copy of the OB entry, or even proceeding to the relevant police station/post and perusing the same?

11. The Petitioner has not demonstrated, even on balance, any new and compelling evidence within the definition approved by the Supreme Court as seen elsewhere above, to warrant allowing his petition under Article 50(6) of the Constitution. The petition is hereby dismissed with no order as to costs. It is so ordered.

DATED AND SIGNED AT MURANG’A THIS 12TH DAY OF JULY 2017

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS 14TH DAY OF JULY 2017