https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7832

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **PETIITON NO. E007 OF 2025** **IN THE MATTER OF ARTICLE 50(6) OF THECONSTITUTION OF KENYA** **BETWEEN** **DENIS NDONYE MUTINDI………………………………………..… PETITIONER** **VERSUS** **THE HON. ATTORNEY GENERAL ......................................... 1ST RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTION ............................... 2ND RESPONDENT** **JUDGMENT** 1. Vide a Petition dated 16-10-2025, brought pursuant to **Article 50(6)** of the **Constitution of Kenya**, the petitioner sought a declaration that the new evidence that the complainant Irene Mueni Ngungu, has adduced vide an affidavit should warrant a retrial based on **Article 50(6)(b)** of the **Constitution** **of Kenya**. 1. Briefly, the petitioner was charged with the offence of defilement of a child aged 9 years contrary to **Section 8(1)** as read with **Section 8(2)** of the Sexual **Offences Act No.3 of 2006**. He was tried, convicted and consequently sentenced to life imprisonment at Kilungu Law Courts on 2-8-2016. His appeal to the High Court vide Makueni High Court Criminal Appeal No.233 of 2017 was dismissed on 2-7-2018. Further appeal to the Court of Appeal vide Criminal Appeal No.74 of 2021 was dismissed on 7-7-2023. 2. It is the petitioner’s claim that he has since obtained new and fresh compelling evidence to warrant afresh trial. He placed reliance on the Supreme Court decision in the case of **Tom Martin Kibisu v Republic (2014) e KLR** where the court gave guidelines/factors to be considered when admitting fresh or additional evidence *inter alia*; discovery of such evidence which could not be available after due diligence. 3. He attached an affidavit sworn by one Irene Mueni Ngungu sworn on 24-9-2025 in which she claimed that she was the complainant in the criminal case leading to the conviction and sentence of the petitioner herein. She averred that she was coerced by her stepfather one Fredrick to fabricate the case against the petitioner. 4. During the hearing, the petitioner basically adopted his submissions dated 11-12-2025 which is a replica of the petition and the affidavit in support. 5. The prosecution filed submissions dated 19-3-2026 conceding the petition. Learned counsel urged the court to order a retrial. 6. I have considered the petition herein, submissions by both parties and the fact that the petition is not opposed. It is trite law that an application does not automatically succeed simply because it is not opposed. The court must interrogate it and make a determination on merit. See **Konchellah v Sunkuli & 2 Others (Civil Application 26 of 2018)(2018)KESC 58(KLR)97 September 2018( Ruling).** 7. The crux of the matter is the claim that the complainant in a defilement case giving rise to the conviction of the petitioner is now claiming that she was forced to lie against the petitioner. It is alleged that the complainant was 9 years when the offence was committed and that she was forced by a step father to lie. That she has since attained age of majority and now disowns her evidence. 8. In the case of **Tom Martins Kibisu** *(supra)* the Supreme Court held that new evidence means evidence which was not available at the time of the trial and despite exercise of due diligence could not have been available during the trial. 9. From August 2016, to date, the complainant is about 19 years. According to the petitioner, the Court of Appeal decision was rendered in July 2023. Why did it take the complainant 10 years to recant her evidence? The delay pending exhaustion of the appellate remedy is meant to release the petitioner through the back door. It could not have taken the complainant that long to realize that she had lied 10 years ago. 10. I am not persuaded by the alleged discovery at this particular time. The evidence if any was available all this time. The same should have been presented during the prosecution of the two appeals. In my view, this is a trick or conspiracy to acquit the petitioner hence a bad precedence to set. If the courts were to allow every convict to revive a criminal trial following this route, courts will be flooded by fresh trials. 11. In view of the above holding, I do not find any merit in the petition hence dismissed. Dated, signed and delivered virtually this **5th** day of **June 2026** J.N.ONYIEGO **JUDGE**