[2021] KEHC 938 (KLR)
The court found that the applicant had already appealed his conviction and sentence, and any issues regarding lack of adequate time and facilities to prepare a defence should have been raised during that appeal. The applicant's claim of new and compelling evidence was unsupported, as he failed to disclose or...
Source-derived case information.
- Citation
- [2021] KEHC 938 (KLR)
- Parties
- Applicant: Paul Wafula Fombo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 71 of 2016
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Retrial
- Outcome
- application dismissed
- Judges
- DN Musyoka
- Legal Topics
- Retrial Applications, New and Compelling Evidence, Mandatory Sentences, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Wafula Fombo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Retrial
Legal Issues
- 1 Whether the applicant is entitled to a retrial on grounds of not being given adequate time and facilities to prepare a defence.
- 2 Whether the applicant has presented new and compelling evidence to warrant a retrial.
Ratio Decidendi
The court found that the applicant had already appealed his conviction and sentence, and any issues regarding lack of adequate time and facilities to prepare a defence should have been raised during that appeal. The applicant's claim of new and compelling evidence was unsupported, as he failed to disclose or demonstrate the existence or relevance of such evidence. The court held that there was no basis for ordering a retrial in the absence of disclosed new and compelling evidence, and that the application was therefore without merit. The court also clarified that the Supreme Court's decision in Muruatetu regarding mandatory sentences was not applicable to the present application, as it...
Court Disposition
application dismissed
Orders
- The Motion dated 29th November 2016 is summarily dismissed.
- The file herein shall be closed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 71 OF 2016
PAUL WAFULA FOMBO..........................................................................APPLICANT
VERSUS
REPUBLIC..............................................................................................RESPONDENT
RULING
1. This matter was placed before me for the purpose of giving directions, in view of the recent decision by the Supreme Court in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others(Amicus Curiae[2021] (Koome CJ&P, Mwilu DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola SSJJ), with respect to mandatory sentences, where it was clarified that the decision, in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), had arisen from proceedings relating to murder, under section 204 of the Penal Code, Cap 63, Laws of Kenya, and the position stated in the said decision was intended to apply only to mandatory sentences with respect to murder cases.
2. The Motion herein, dated 28th November 2016, was filed herein on even date, and it is not founded on the decision, in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), for the applicant does not seek review of his sentence, where he had been convicted of murder, contrary to section 203, as read with section 204, of the Penal Code, in Kakamega HCCRC No. 42 of 2000, and was sentenced to death. He filed an appeal at the Court of Appeal at Kisumu, being Kisumu CACRA No. 39 of 2004, which was dismissed.
3. What the applicant seeks is a retrial on grounds that he was not given adequate time and facilities to prepare a defence. He had appealed, and the issue of not being afforded time and facilities to prepare defence ought to have been canvassed in the appeal. He says that he has new and compelling evidence. He has not disclosed that new evidence in the supporting affidavit, and he has made no effort to demonstrate how the evidence, if available at all, would change the course of things. I see not basis at all for ordering a retrial, and I hereby summarily dismiss the Motion dated 29th November 2016. The file herein shall be closed.
4. The Deputy Registrar shall cause copies this ruling to be availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 20TH DAY OF DECEMBER 2021
W MUSYOKA
JUDGE