[2021] KEHC 4701 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CRIMINAL PETITION NO. 17 OF 2018

JOSEPH ONYANGO OWUOR .................................................. PETITIONER

-VERSUS-

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

JUDGMENT

The Petitioner, JOSEPH ONYANGO OWUOR, has sought the following 4 susbstantive orders;

“(a) A declaration that new and compellingevidence has become available, whichevidence if the trial had an opportunityto view, would have reached a differentconclusion and thus a retrial is necessary.

(b) A declaration that the manner in whichthe trial court conducted and subsequentlyconsolidation of the petitioner’s case withthat for which he was never charged ormentioned as a suspect was unfair, in badtaste and not in furtherance of the courseof justice as a breach of the petitioner’sright to a fair hearing within a reasonabletime.

(c) An order for a fair trial within a reasonableperiod.

(d) A declaration that the mandatory deathsentence prescribed by Section 204 of thePenal Code is unconstitutional and theconsequent award of damages for thatillegality.”

1. The Petition was filed by the Law Firm of AMONDI & CO. ADVOCATES, on 24th January 2018.

2. On 1st October 2018 the Petitioner and the Respondent agreed that the case would be set down for re-sentencing.

3. The said agreement was informed by the pronouncement by the Supreme Court in the case of FRANCIS KARIOKO MURUATETU & ANOTHER Vs REPUBLIC PETITION NO. 15 OF 2015.

4. However, the Petitioner had a change of mind, and decided that he wished to canvass the whole petition.

5. On 12th June 2019 the Petitioner told the Court that he wished to canvass his application personally. After ascertaining from the Petitioner if he was sure about representing himself, the court allowed him to proceed with the Petition.

6. However, when the hearing was scheduled to start, at 10. 59a.m, Mr. Achura advocate came on the record as the Petitioner’s lawyer.

7. The Petitioner told the Court that he was happy to have Mr. Achura represent him.

8. Counsel informed the Court that the Petitioner had instructed him to pursue the relief of a re-trial. At that stage, Mr. Achura advocate sought an adjournment so that he could have an opportunity to discuss the matter with the advocate who was on the record, as acting for the Petitioner.

9. On 23rd September 2019, the Petitioner said that although the state had given him an advocate, the said advocate had not contacted him on that date. He therefore sought an adjournment.

10. After several other adjournments, which were precipitated by the absence of the Petitioner’s advocate, the Petitioner decided that he was better off if he represented himself.

11. Eventually, the Petitioner filed his submissions.

12. As a precaution, the court opted to ascertain from the advocate who was on record, that he had agreed to have the Petitioner act for himself.

13. When the Petitioner emphasized that he wished to act for himself, the Court allowed him to proceed.

14. In his oral submissions, the Petitioner said that the petition was based on new and compelling evidence. He said that the person who had been arrested is named EDWIN.

15. In the circumstances, the Petitiner submitted that it was not known how the said EDWINbecame JOSEPH.

16. The Petitioner drew the attention of the Court to the fact that PW9had testified that the person he arrested was EDWIN OCHIENG. As the Petitioner is named JOSEPH ONYANGO, he was of the view that that was new evidence which could have yielded a different result, if it had been brought to the attention of the trial court.

17. In answer to the Petition, Ms Maurine Odumba, learned prosecution counsel, pointed out that the Petitioner had been charged with FOUR (4)counts of Robbery with Violencecontrary to Section 296 (2)of the Penal Code; TWO (2)Alternative counts of Handling Stolen goodscontrary to Section 322 (2)of the Penal Code; and ONE (1)count of Being in possession of Ammunition without a Firearm Certificatecontrary to Section 4 (1)as read with Section 4 (3)of the Firearm Act.

18. At page 92 of the record of the proceedings from the trial court, is the evidence which the Petitioner alluded to when he said that the person who was arrested by PW9was EDWIN OCHIENG.

19. In order to appreciate the totality of the evidence tendered by PW9, I perused the record of proceedings from page 91 of the record, from where the Petitioner herein commenced cross-examination of PW9.

20. The witness said;

“We arrested 3 suspects who wereEdwin Ochieng, which is the nameyou gave us as your name. Thenthere was John Muga and NaftaliOnyango.”

21. The said witness went on to testify as follows;

“I asked you your names and yousaid you were Edwin Ochieng.

…………..

You were booked at Kondele withthe offence of robbery in the nameof Edwin Ochieng alias Job.

I know you are charged in thiscourt. It was later establishedthat you gave us false names.”

22. He concluded his testimony by saying that;

“Joseph Onyango’s name wasobtained by investigating officer.”

23. In the circumstances, I find that the identity of the person who was arrested is neither new nor outstanding. It is an issued that was raised during the trial.

24. And the witness gave a sound explanation concerning how the name Edwin Ochieng arose.

25. Therefore, there was absolutely no basis for ordering a re-trial.

26. Secondly, the Petitioner was convicted on Four (4) counts of Robbery with Violence.

27. In the circumstances, the Petitioner ought to have demonstrated to this Court that he was entitlted to a variation of the sentence which was imposed by the trial court, and which was varied by the High Court, on appeal.

28. I find that the Petitioner failed to demonstrate that the circumstances in which the multiple offences were committed called for a variation of the sentence.

29. The Petitioner also failed to demonstrate to this court, how the trial court had violated his right to a fair trial within a reasonable time.

30. In the result, the Petition lacks merit, and the same is dismissed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 21ST DAY OF JULY 2021

FRED A. OCHIENG

JUDGE