Mulefu & another v Republic (Petition E004 of 2025) [2026] KEHC 11029 (KLR) (16 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUSIA** **CONSTITUTIONAL AND HUMAN RIGIITS DIVISION** **PETITION NO. E004 OF 2025** **BETWEEN** **ERNEST OJIAMBO MULEFU…………………………..1ST PETITIONER** **STEPHEN WANDERA MULEFU……………………….2ND PETITIONER** **VS** **REPUBLIC……………………………………………………..RESPONDENT** ***(Arising from C.O.A Kisumu CRA No. 168/2018 and HCCR CA. No. 35/2010 Busia)*** **RULING** 1. By an undated chamber summons and Petition the Petitioners move this court under the provisions of Article 50 (6) urging for a re-trial on the basis of the following; 2. That a new and compelling evidence now have become available. 3. That, the evidence of PW1was not true in accordance to his sworn affidavit annexed herein 4. That, the annexed herein copies of OB extracts and sworn affidavit of PW1 in criminal case No. 35 of 2010 is a new and compelling evidence enough to change the whole outcome of this case. 5. That may this Court be pleased to consider the annexed Affidavit and extracts of Occurrence Book as a new and compelling evidence. 6. The petitioners herein were convicted and sentenced to suffer death for the offence of murder contrary to section 203 as read with section 204 of the penal code, in Cr. case No. 35 of 2010 at Busia High Court. 7. The petitioners' first appeal vides C.O.A CRA. No. 168 of 2018 at Kisumu was dismissed on the 8th November 2024 Initially, the petitioners were charged, tried, convicted, and sentenced to serve ten (10) years imprisonment for the offence of attempted murder in Cr. case No. 914 of 2010 CM's court Busia. The complainant in Cr. case No. 94/2010 CM's court Busia is PW 1 in HCCR CA No. 35 of 2010 Busia. 8. That, the evidence was not available to them during the hearing of this case at the trial court and the same was not disclosed during their first appeal. 9. This petition is premised on Article 50 (6) & 35 (2) of the constitution Kenya 2010. It is supported by an affidavit of ERNEST OJJAMBO MULEFU sworn on his behalf and on behalf of STEPHEN WANDERA MULEFU, the 2nd petitioner herein. Also annexed is the affidavit of PAUL WANYAMA ALIMIDI of ID No. 7915728 being the complainant in Cr. CA No. 914/2010 and PW 1 in HCCR CA No. 35/2010 Busia. 10. That Article 50 (6) of the Constitution states as follows: (6)- person who is convicted of a criminal offense 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. Whereas Article 35 (2) of the constitution provides; 35 (2)- every person has the right to correction or deletion of untrue or misleading information that affects the person. 1. That the Nature of New and Compelling Evidence Available is a Sworn affidavit of PW I PAUL WANYAMA ALIMIDI of ID No. 791572 and the realization of the importance of the initial report (first report to the authority. 2. That PWI PAUL WANYAMA ALIMIDI of ID No. above has emerged and sworn an affidavit dated 8th day of May 2017, confirming being the complainant in Cr. case No. 914/2010 CM's court Busia and PW 1 in HCCR case No. 35/2010 Busia, 3. That the incident in both files is allegedly committed by the same perpetrators and at the same transaction as per the evidence on record. PWI now claims that during the ordeal he did not identify or recognize any of the attackers as the circumstances were not favorable and that anybody asserting that he/she identified the perpetrators would be a liar. 4. That it May be noted that PW I was the closest person next to the perpetrators since he was tied together with the deceased. He now claims that during the recording of his statement to the police, he was deceived, misled, intimidated, coerced, and compelled to implicate the petitioners herein. 5. It is therefore the Petitioners submissions that the trial court in its judgment heavily relied on the evidence of PW I and only sought for corroboration from PW4, PWS, PW6, and PW3. See in trial court judgment at page 18 paragraph 39. The question then to ask is whether there was anything that could restrain the police from intimidating, deceiving. and compelling PWs 3, 4, 5, and 6 to implicate the petitioners as it was so done to the complainant in Cr. case No. 914/2010 and PW I herein. The automatic answer is NO! 6. That the court of appeal in RORIA VS REP (1967) E.A. 583, reminded us in KIARIE VS REP that; *"It is possible for a witness to be honest but mistaken"* 1. It is thus the Petitioners submissions that the evidence available is new and compelling worthy to affect the trial court's decision in reliance to this court's decision differently constituted in the case of WYCLIFFE OPURU OYAKAPEL VS REP Cr. Pet. No. 7 of 2017, whereby the petitioner was referred to a fresh trial over the same issues. See the attached authority. 2. The Petitioners invites the court to be pleased to be guided by the decision of the high court in Kakamega Constitutional petition No. 12 of 2014 Hassan Mohammed Namwiba Vs Republic, ruling delivered on 29/05/2014, whereby upon determination of the said petition, the court was satisfied that there was new and compelling evidence that had become available, pointing out that the petitioner was not the one who robbed the complainant thus a conclusion that a retrial would not meet the ends of justice hence the petitioner was acquitted. 1 humbly beg for the same as Hassan Mohammed Namwiba as an alternative of a retrial. 3. May it be noted that all the prosecution witnesses (ten of them). Are still alive and they can be found if required by this court. 4. That, on the 29 April 2013, the trial court ordered that by consent, a certified copy of OB No. 4/7/2010 be availed to the accused's counsel. However, the same order was not complied with, hence the prosecution closed their case without the same being furnished to the appellant contrary to Article 35(1),50(2)(c) &(j) of the constitution. 5. The OBs hereto attached, was obtained after the Petitioners conviction which prompted their application for arrest of Judgment under section 324 (1) of the C.P.C which was unsuccessfully ruled out. The petitioners were both convicted based on evidence of physical and voice recognition. It has come to our attention that the initial reports. 6. That OB No. 4/7/2/2010 and OB No. 18/7/2/2010 does not bear, mention, or indicate our names yet we were not accorded an opportunity to interrogate the prosecution evidence in respect of recognition either by physical or voice, due to the failure to disclose to us the contents of the said OBs by the prosecution as required for by article 50(2)(j) of the constitution. 7. That in the instant case the reporters did not mention the petitioners' names in their initial report despite the petitioners being known to them before the incident. 8. The Petitioners have now realized that the initial report to the authority is important and crucial. See the holdings of the superior courts in the following eases: TEKERELI KIONGOZI (2) MALINO KEEYANI (3) KILIDONG (4) MAIRULI% MUREASI (5) KIMANGATI MOBEKI VS REGINA, VOI 1952 E.A. CA 259, and the court of appeal held that: *"...evidence of complaint to persons in authority are important as they provide good test by which the truth and accuracy of the subsequent, may be gauged and provides safeguards against establishment of a made-up case..."* 1. That the judges in Akumu Vs Rep. (1954) 21 E.A. C.A, added another criterion that, *"... truthfulness will be out in the first statement from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others..."* 1. Furthermore, the case of PETER OCHIENG OKUMU Cr. App No. 185 of 1987, it was held that; *"failure to make prompt report and giving names of the appellant in the first instance causes uneasiness in believing a witness' evidence." In the case of NTELEJO LOKWAM VS REPUBLIC (2006) eKLR, it was held that; "in the absence of description being given to the police when the 1" report was made after the robbery had taken place, it would be impossible for an independent tribunal evaluating that evidence to arrive at a determination that the complainant had in fact made a positive Identification of the appellant."* 1. That it is the Petitioners observation and submissions that, this evidence was not brought during the trial since the petitioners had not been served with the annexed OB extracts, yet if the arguments would have been brought to light during the trial in reliance with the above cited decisions of the superior courts. The outcomes of the trial court would have been different; thus the Petitioners urge this Honorable court to find it pleasing to order for a retrial in Cr. case No. 35 of 2010 as new and compelling evidence has become available in the interest of justice. 2. That also important to note and consider is that the petitioners death sentence has been confirmed by the court of appeal as a result of the petitioners' record of which on 8th December 2016, Mr. Obiri for the state, told the trial court that we have the previous records. The accused persons are serving ten years in Busia CM criminal case No. 914/2010 for attempted murder. It is thus my submissions that the complainant in this case No. 914/2010 has emerged and swom an affidavit claiming that we were wrongfully convicted hence ought to be given an opportunity to be heard in mitigation and state to give a fresh record in order to be sentenced a fresh as first offenders in case a conviction is found. 3. May it be noted that the incidents in both cases arose from one transaction as PWI and the deceased were attacked, and beaten while tied together at the same time, same place by the same people according to the evidence on record. Thus, it is my submissions that this information was not placed before the Honorable judge during sentencing, thus new, and compelling evidence has become available. 4. The Petitioners therefore urge for a fresh trial in the interest of justice and or any other relief in the circumstances as may the court deem it fit and just to grant. 5. This Petition is undefended by the state despite that opportunity having been availed. 6. This constitutional court has a duty whenever a motion pursuant to Article 50 (6) is raised to scrutinize the record together with the new and compelling evidence being sought to be introduced on merit. 7. Article 50 (6) which lays down the following conditions, 8. the petitioner must have exhausted the laid down appeal mechanism open to him or the person did not appeal within the time allowed; and 9. there must be new and compelling evidence. 10. The question, however, is whether the petitioners have met the above conditions which are critical imperatives under Article 50(6). The petitioners did appeal to the High Court and the Court of Appeal but both appeals were dismissed. A three-judge bench of the court of appeal on the 8th November 2024 unanimously found that the petitioners were convicted on sound evidence and upheld the verdict. 11. Having exhausted the available appeal mechanism open to them, they now petition this court. 12. Under article 50(6) of the Constitution, to warrant the court to allow a fresh trial, it is a requirement that the petitioners must demonstrate that there is new and compelling evidence. The evidence must be new in the sense that it must not have been available to the petitioners during the trial. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial or was not available at the time of the hearing of the appeal. 13. Secondly, the evidence must be compelling meaning that it must be admissible, credible and not merely corroborative, cumulative, collateral or impeaching. It must be such that if it is considered in light of all the evidence, it must be such as to be favourable to the petitioners to the extent that it may possibly persuade a court of law to reach an entirely different decision than that already reached. 14. "New" evidence for the purposes of article 50 (6) is evidence not adduced in the previous proceeding. "Compelling" means evidence which is reliable, substantial and highly probative of the case in the context of the outstanding issues, that is the issues which were in dispute in the first trial.[7] 15. I have carefully examined the reasons offered by the petitioner and the affidavit filed by the person the Petitioners claims has recanted his initial evidence. 16. It is noteworthy that Paul Wanyama Alimidi is a nephew of the petitioner a fact not disclosed in their motion or submissions by one that is prominent in the entire record. 17. The evidence of this witness was not only consistent but the same was corroborated by PW4 who was the wife of the deceased. 18. The incident ran for two days starting on 4th February 2010 when Paul Wanyama was first attacked on allegation of cattle rustling while the petitioners were on the hunt for the second suspect the deceased. In the 1st incident the witness was injured and admitted to a hospital for 2 nights and upon discharge on the 6th the Petitioners in the company of a mob came back for him tied him with the deceased and further went for a 3rd suspect where they were escorted to a nearby school and further assaulted inflicting upon him serious injuries leaving the deceased’s with fatal injuries. 19. The said Paul was left for dead and the two other suspects died triggering the incident report number OB 4/7/2/2010 by the assistant chief who found the two dead bodies and the said Paul at 6.15 am. 20. The incident report is factual and does not absolve the Petitioners in any way the Affidavit alleged to be new and compelling evidence alleges that he was deceived at the time of recording his statement with the police to implicate the petitioners and that he never reported the incident to the police. 21. There is no explanation why the police would want to implicate the petitioners. Also, it has not been shown that their evidence meets the above tests to the extent that if admitted, the verdict will be different. 22. The Petitioners further allude that all witnesses are alive available to testify without providing any basis of such assertion sixteen 16) years after the fact. 23. The judgment of the court of appeal is fairly detailed and the court described the evidence tendered as sound. There is nothing to show that the conviction was unsafe or could have been different had the alleged witnesses been called. Article 50 of the constitution limits this court's jurisdiction to the grounds stated sub-article (a) and (b) above. 24. This Court is unpersuaded that this evidence is fresh and compelling and that this petition falls short of the envisioned constitutional standards warranting a retrial either for the manslaughter charges of the two murders committed. 25. I thus find no merit in this Application and accordingly dismiss the same. **Delivered Virtually on the TEAMS Platform** **On this 16th day of July, 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Mohochi. S. M.** **Presiding Judge**