[2016] KEHC 6129 (KLR)
The court found that the issues raised by the applicant—non-compliance with Section 214 of the Criminal Procedure Code, a defective charge sheet, and the absence of the parade officer's testimony—were not new and compelling evidence as required under Article 50(6) of the Constitution. These matters were either...
Source-derived case information.
- Citation
- [2016] KEHC 6129 (KLR)
- Parties
- Applicant: Moses Atela Othira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 43 of 2013
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- petition dismissed
- Legal Topics
- Robbery With Violence, New and Compelling Evidence, Post Conviction Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Atela Othira
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicant has presented new and compelling evidence under Article 50(6) of the Constitution to warrant a retrial or review of conviction.
- 2 Whether the issues raised regarding non-compliance with Section 214 of the Criminal Procedure Code, a defective charge sheet, and failure to call the parade officer constitute new and compelling evidence.
Ratio Decidendi
The court found that the issues raised by the applicant—non-compliance with Section 214 of the Criminal Procedure Code, a defective charge sheet, and the absence of the parade officer's testimony—were not new and compelling evidence as required under Article 50(6) of the Constitution. These matters were either already within the applicant's knowledge or could have been raised during the trial and appeals. The court relied on the Supreme Court's definition in Tom Martins Kibisu v Republic, holding that only evidence unavailable at trial and sufficiently weighty to affect the conviction qualifies. As such, the petition did not meet the threshold for review or retrial, and was dismissed.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CRIMINAL APPL. NO.43 OF 2013
MOSES ATELA OTHIRA ….............................................................APPLICANT
VERSUS
REPUBLIC …...................................................................................RESPONDENT
J U D G M E N T
1. The applicant/petitioner was charged and convicted of Robbery with Violence. He was sentenced to suffer death. His appeal to this court and the Court of Appeal were unsuccessful.
2. He like others serving such sentence has tried his luck pursuant to the advent of the new constitution. He premised his petition on Article 50(6) of the same. He argued that certain salient issues were not considered by the three courts namely Section 214 of the Criminal Procedure Code was not complied with by the trial court, that the charge sheet was defective and that the parade officer was not called to testify.
3. The Supreme Court of Kenya in TOM MARTINS KIBISU VRS REPUBLIC (2014) eKLRagreed with the Court of Appeal when defining what was “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 then conviction would probably not have been sustained.”
4. I have perused the proceedings from the three courts and I do not find the issues raised by the petitioner to be new and compelling. The question of a defective charge sheet all along ought to have been within his mind and he should have raised it earlier on. Further whether or not there are witnesses who should have been called to testify cannot be termed new.
5. In the premises and Like most of myriad other petitions, the same is dismissed.
Dated, signed and delivered this 31st March, 2016.
H. K. CHEMITEI
J U D G E
In the presence of:
…..............................for state
….............................for applicant