https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11182

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT GARSEN** **HIGH COURT CRIMINAL PETITION NO.E006 OF 2026** **ABDI ALI MOHAMED….…………………………..……. PETITIONER** **VERSUS** **REPUBLIC………………….……………………..……….RESPONDENT** **RULING** 1. The petitioner has filed a constitutional petition application dated 10th March 2026 seeking for this court to call for and examine the record and proceedings in GARSEN High Court Criminal Case No. 12 of 2016 and the record of the Court of Appeal at Malindi Criminal Appeal No. 132 of 2022 for the purpose of satisfying itself as to the correctness, legality, propriety and constitutional soundness of the conviction and sentence entered against the Applicant for the offence of Murder Contrary to Section 203 and 204 of the Penal Code. 2. The application is premised on grounds stated on the face of the application and supported by the plane statements of the applicant and his sister, Mwanaisha Yakub Athman. 3. The Applicant says that there is new and compelling evidence that warrants him being granted a new trial. That there were witnesses with material evidence who were not called in the case including the doctor who attended to the deceased immediately after he was assaulted. That there is evidence from several Community members who attended to the body of the deceased after we was attacked. That there is evidence from identified witnesses who are ready to provide evidence that the conviction was procured by a systematic pattern of coercion, bribery and intimidation of potential witnesses by the victim’s family and local administration. 4. I have considered the petition. The same is made pursuant to the provisions of Article 50 (6) (a) and (b) of the Constitution of Kenya 2010 which provides that: (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. 1. I have perused the petition and note that the same is not supported by any affidavit sworn before a Commissioner of Oaths. The petitioner just filled his plane statement which is not signed before a commissioner of Oaths. The statement from his sister is also a plane statement not signed before a Commissioner of Oaths. In my view such an application should be supported by an affidavit. There being no affidavits in support of the application the statements by the petitioner and his sister are of no evidential value. 2. Secondly, the petitioner has not filed affidavits of the potential witnesses indicating their potential evidence and the importance of their new evidence. He has not identified the potential witnesses but has just made general statements without any identification of the witnesses. 3. Thirdly, a petitioner in an application for new trial must show why the witnesses were not called to testify in the first place. The petitioner has just made general statements faulting the prosecution for not calling the witnesses. He was not precluded from calling the witnesses not called by the prosecution. The law of evidence is that no particular number of witnesses are required to prove a certain fact. If the witnesses called by the prosecution managed to prove the case against the applicant, this court cannot intervene in the manner sought by the applicant. 4. In view of the foregoing, I find that the petitioner has not established that there is new and compelling evidence in the case. He has thus not established a *prima facie* case for a new trial. The petition has no merits and is dismissed. **Ruling Delivered, dated and signed at GARSEN this 17th day of July, 2026.** **J. N. NJAGI** **JUDGE** **In the presence of:** **Mr. Oluoch for Respondent** **Petitioner – Present virtually at GK Prison Malindi**. Court Assistant - Rahma