[2022] KEHC 10397 (KLR)

Mwenga v Republic (Petition E023 of 2021) [2022] KEHC 10397 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10397 (KLR)

Republic of Kenya

In the High Court at Machakos

Petition E023 of 2021

GV Odunga, J

May 19, 2022

Between

Martin Muthiani Mwenga

Petitioner

and

Republic

Respondent

Judgment

1. By Chamber Summons fled on 25th November, 2021, the Petitioner herein seeks an order staying proceedings in High Court Criminal Case No. 35 of 2015 and for the Court to declare that his rights to air trial were violated when his concerns were not addressed. He therefore sought that his trial start afresh.

2. According to the Petitioner, he was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He averred that during the said proceedings, he informed his counsel to recall PW3, PW6 and PW10 since he was not satisfied with their evidence. However, his Counsel ignored his concerns and rudely brushed him off. According to him, his Counsel informed him that the Probation Officer had informed him that he needed money so that he could return a favourable report about the Petitioner.

3. Aggrieved by the failure by his Counsel to act on his request, he raised his concerns. He added that despite calling his lawyer several times, he ignored his calls. It was his case that his trial has been characterised by violation of his rights as enshrined in the Constitution under Article 50(2) and 25(c) of the Constitution hence it is in the interest of justice that the reliefs sought by him be granted.

4. In opposing to the petition, the Respondent filed the following grounds of opposition:1)That the instant petition is frivolous, vexatious and an abuse of the court process.2)That the petition does not meet the legal requisite for the orders sought.3)That this Honourable Court cannot stay the criminal proceeding against the petitioner as the court has already delivered its judgment convicted and sentenced him to twenty years imprisonment and it became functus officio.4)That the petitioner had all the time from the year 2015 to the year 2021 to bring forth all the allegations of recalling witnesses and issue of representation by his lawyer, however he did not raise them in court.5)That the instant petition is only mend to delay the wheels of justice and to frustrate the ends of criminal justice system.6)That the petitioner has never appealed to the court of appeal and he has not exhausted his rights to appeal.7)That the evidence alleged to be new and compelling was available to the petitioner at the time of his trial, the petitioner failed and neglected to produce the same in court, therefore it cannot be termed as new evidence.8)That there are is no new and compelling evidence to warrant a retrial as contemplated under Article 50 (6) of the constitution.9)That no valid grounds have been adduced by the petitioner to justify the urged re-trial.

5. There was a response from Serah Makaa John, the County Probation Director Machakos, in which it was averred that the said office offers free service as per its service charter and that its report on the Petitioner was based on the facts. According to her the process was not a one man’s show and that in arriving at the said report, more than one officer from the said officer was involved hence there is no basis for alleging that the said office demanded money through the Petitioner’s advocate as none of the said officers was in contact with the said advocate.

6. Apart from that there was a replying affidavit sworn by Mike M. Muema, who was appointed by the State to undertake the defence of the Petitioner. According to him, he diligently undertook the Petitioner’s defence throughout the trial till his conviction and upon his conviction, he advice the Petitioner to appeal but the Petitioner insisted that his case ought to start afresh. He stated that the allegations that the Petitioner requested for the recall of the said witnesses were ill founded and in any case, the said witnesses were the Petitioners relatives whom he could have availed in Court since he was out on bond. He also denied that he informed the Petitioner that the Probation Officer wanted money and termed the said allegations as scandalous and defamatory.

7. According to the deponent there is no provision for entertainment of such an application or for reopening of the case afresh upon conviction and urged the Court to dismiss the case.

Determination 8. I have considered the issues in this petition. The Petitioner seeks an order for reopening his case and for the hearing afresh on the ground that he did not get a fair trial since his advocate failed to adhere to his instructions for the recall of certain witnesses.

9. The power to recall witnesses is provided for under section 146(4) of the Evidence Act which states as follows:The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.

10. It is therefore clear that the decision whether or not to recall witnesses who have testified is discretionary. One cannot therefore state with certainty that the failure by the counsel to apply for the recall of witness, did render his trial unfair since there is no certainty that even if such an application had been made the trial court would have allowed the same. Assuming that this Court has the power to order for retrial after a criminal case has been heard and a conviction made and sentence meted, it would be necessary for the Petitioner to place before the Court material upon which the Court can form a prima facie view that recall of the witnesses was desirable. No such material has been placed before me in this petition.

11. To my mind, the only provision that permits this Court sitting as a Constitutional Court to order for retrial where a Petitioner has been convicted of a criminal offence and a sentence meted is Article 50(6) of the Constitution which provides that: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

12. In this case, I have not found any new and compelling evidence that has become available in order for the above provision to be invoked. In my view nothing barred the Petitioner from himself raising the issue of his intention to recall the said witnesses even if his advocate failed to act on his instructions. In criminal matters, an accused person is perfectly entitled to bring to the Court’s attention any matter which in his view ought to be considered by the Court where his instructions to his counsel, particularly where the counsel is instructed to appear for him by State, are not been complied with.

13. I must however state that where there is a patent error on the record of the proceedings, such as where the trial Court failed to comply with section 333(2) of the Criminal Procedure Code, (which obliges the Court to take into account the period that an accused person spent in custody before sentencing), and an appeal against the conviction and sentence was subsequently dismissed without the appellate Court addressing its mind to the said provision, nothing bars this Court from invoking section 333(2) in order to correct that patent error. By doing so this Court would not be interfering with the decision of the Appellate Court since that Court did not deal with the said provision but would merely be correcting the decision of the trial court that failed to address its mind to section 333(2) which provision is meant to ensure that the sentence meted against an accused is fair. However, where what is sought requires a detailed inquiry as to the factual circumstances of the case and where the case does not fall under Article 50(6) of the Constitution, this Court would not interfere.

14. Accordingly, having considered the material placed before me I find no basis in the allegations made against the Petitioner’s legal counsel and the Probation Officer. Accordingly, this petition fails and is dismissed.

RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 19TH DAY OF MAY, 2022G.V. ODUNGAJUDGEIn the presence of:The Petitioner onlineMr Jamsumba for the RespondentCA Susan