[2016] KEHC 6209 (KLR)
The court found that the issues raised by the applicant—defective charge sheet, failure to call the investigating officer, and lack of adequate facilities for defence—were not new and compelling evidence as contemplated by Article 50(6) of the Constitution. These matters were within the applicant's knowledge at the...
Source-derived case information.
- Citation
- [2016] KEHC 6209 (KLR)
- Parties
- Applicant: Joseph Musotsi Opanda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 31 of 2012
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application dismissed
- Legal Topics
- New and Compelling Evidence, Capital Offence Sentencing, Constitutional Rights Article 50, Defective Charge Sheet, Calling of Witnesses, 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
Joseph Musotsi Opanda
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicant has presented new and compelling evidence as required under Article 50(6) of the Constitution.
- 2 Whether the alleged defects in the charge sheet constitute new evidence.
- 3 Whether failure to call the investigating officer as a witness amounts to new and compelling evidence.
Ratio Decidendi
The court found that the issues raised by the applicant—defective charge sheet, failure to call the investigating officer, and lack of adequate facilities for defence—were not new and compelling evidence as contemplated by Article 50(6) of the Constitution. These matters were within the applicant's knowledge at the time of trial and could have been raised then. The court emphasized that the discretion of which witnesses to call rests with the prosecution, and the applicant had the opportunity to call any witnesses he deemed necessary. As such, the application did not meet the threshold for review based on new and compelling evidence, and was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
INT HE HIGH COURT OF KENYA AT KISUMU
MISC. CRIMINAL APPLC. NO. 31 OF 2012
JOSEPH MUSOTSI OPANDA ….......................................................APPLICANT
VERSUS
REPUBLIC …..................................................................................RESPONDENT
J U D G M E N T
1. This is another petition in series of petitions brought by prisoners serving sentence on Capital Offence. The same is brought pursuant to the window of opportunity provided by Article 50(6) of the Kenya Constitution 2010 in which such parties are permitted to approach the mercy sit of justice if there is a new and compelling evidence which would have altered the findings of the court had it been discovered during the trial.
2. In TOM MARTINS KIBISU VRS REPUBLIC 20 eKLR, the Supreme Court in quoting the Court of Appeal defined the “new and compelling evidence” as:
“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 was available to the trial or the appellate courts the conviction would probably not have been sustained.”
3. In the instant case the applicant has cited 3 issues which he deemed them as new and compelling evidence namely:
that the charge sheet was defective,
that the essential witnesses namely the investigating officer was not called.
That he was not granted adequate facilities to defend himself.
4. Having perused the judgment of this court and the Court of Appeal, I do not find the three issues to be new at all. The issue of the charge sheet for instance was well within the applicant's knowledge from day one. All the courts had the chance and opportunity to ascertain. In any case nothing stopped the applicant from raising the same.
5. The same goes with the other two issues. The question of whom to call as witnesses rests on the prosecution. Nothing stops them from determining who should and who should not testify in a matter. Needless to say the applicant had the opportunity of calling any of the witnesses.
6. Consequently the application is unmeritorious. I find the applicant and such other related to be a window for opportunity for such petitioners to seek fresh air outside the prison walls.
The same is dismissed.
Dated, signed and delivered this 22nd day of MARCH, 2016
H. K. CHEMITEI
J U D G E
In the presence of:
…..........................for state
…...........................for applicant