[2017] KEHC 1552 (KLR)

REPUBLIC OFK ENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

CRIMINAL DIVISION

MISC. APPLICATION NO. 34 OF 2016

BETWEEN

PHILIP KISAVI NZAMULI.........................................APPLICANT

AND

REPUBLIC.............................................................RESPONDENT

R U L I N G

Introduction

1. The applicant Philip Nzamuli Kisavi was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. After hearing the case the trial court being Kakamega CMC found him guilty as charged and convicted him. He was sentenced to death. His appeals to the High Court and to the Court of Appeal were both dismissed.

The Application

2. By a notice of motion filed on the 1st September, 2016, filed pursuant to the provisions of Article 50(6)(b) of the Constitution, the applicant is seeking orders to quash the conviction and set aside the sentence because new and compelling evidence has become available. The application is based on the grounds that the complainant at the trial, one Mr. Peter Ambani Kerogo has confessed to fixing the applicant and consequently having him convicted and sentenced on erroneous evidence.

3. Peter Ambani Kerogo who was the complainant in the court below depones, in his affidavit dated 17. 05. 2016, that he has never found peace since he testified against the applicant, and further that since 2007 he has faced many challenges, including the death of three family members in an accident. He further says that the evidence he gave during the trial was not the truth, since it was the police who told him that the applicant herein was the robber, yet he was a passenger in motor vehicle KZT 410, Toyota Corolla which belonged to Francis Khasemba, his boss who testified as PW2. The complainant further depones that the people who robbed him were some young men who had flagged down the car in which he and the applicant were driving. He also alleges that at some point during the robbery, when his hands were tied, he opened the boot of the car, and jumped out thereby suffering some injuries. He urges this court to allow the applicants application for release.

Submissions

4. The application was canvassed by way of both written and oral submissions. The applicant through his advocates filed written submissions dated 25. 10. 2016 while the prosecution opposed the application orally. In his submissions counsel for the applicant maintains that there is new and compelling evidence in that the complainant has changed his earlier statement/testimony that led to the conviction of the applicant.

5. Counsel also submits that the complainant has confessed to fixing the applicant through his testimony which was a lie. Reliance is placed on the affidavit of the complainant sworn on 2. 12. 2015 but the affidavit that is on record is dated 17. 05. 2016. Prosecution counsel Mr. Juma opposed the application. He submits that under Article 50(6) of the constitution a new trial may be granted to a person who has been convicted of a criminal offence if (a) that person has exhausted all the avenues for appeal in the criminal case (b) there is new and compelling evidence to warrant the court to order a new trial.

6. He submits that the applicant has not satisfied the two requirements and has also not demonstrated what the nature of the new and compelling evidence is. He claims that what is being touted to as new and compelling evidence is actually not new evidence because the witness in question had already given his testimony during the trial and yet he never pointed out to the trial court that he was mistaken as to the identity of the applicant.

7. The applicant is seeking the orders on the basis of two grounds:- Ill health as he says he suffers from hypertension and the second reason being that there is new and compelling evidence which comes from the affidavit sworn by the complainant. On the issue of ill-health, no documents have been annexed to the application to support this allegation. In any event, even if there was such evidence, this would not form a ground for the granting of the orders being sought by the applicant. The court is aware that prisons have medical facilities to which the inmates can be taken for treatment and in the case of more serious conditions arrangements can be made to take the concerned inmate to a bigger facility for more specialized treatment.

8. On the second reason, there is no doubt that the complainant gave evidence during the trial in the court below. The only point of departure at this time is that after some soul searching, the complainant has realized that the evidence he gave was not true, and he want to be given an opportunity to tell the court the truth. Prosecution counsel, Mr. Juma submitted that such evidence cannot be said to be new and compelling because the complainant must have known at the time of the trial, what the evidence he was giving was all about, and whether it was the truth or otherwise.

9. I have read the judgment delivered by JJA on 08. 11. 2013. One of the grounds of Appeal to the Court of Appeal was whether the applicant was not one of the robbers, or was a victim.

10. In other words, was there mistaken identity of the applicant as a robber? The Court of Appeal dissected the evidence as given during the trial and also considered at length the judgment of the High Court. The Court of Appeal noted that there were other eye witnesses to the robbery which took place in mid – morning. These witnesses were Timothy Mukote Ndusi (Timothy) who testified as PW3, Taracius Mwach, PW4 (Taracius) Ronald Khabuchi Mukoboi, PW7 (Ronald) and Paul Shimila Asuti, PW8 (Paul). After carefully analyzing the complainant’s evidence, together with the evidence of the four eye witnesses, named above, and after also considering the rival submissions made to their Lordships, the learned JJA had this to say on the issue:-

“The starting point is when the appellant approached Peter who was a taxi driver and hired him. At that juncture, they were only two. On their way, the appellant said two people who joined them were Peter’s customers, but if that were so, and Peter’s customers wanted to and did attack him, and Peter one would have expected Peter to remain in the vehicle as in that scenario, Peter’s customers would be attacking the appellant and those customers of Peter would have nothing against Peter. If on the other hand those Peter’s customers took the appellant and the vehicle leaving Peter behind, then what would explain the fact that thereafter, when the vehicle went into a ditch those customers ran away to the bush and all the other eye witnesses namely Timothy, Taracius, Ronald, and Paul saw the appellant also running away to the bush? Again we may still ask, if the appellant was a victim of the robbery, then why is it that those who saw him, saw him holding a firearm and Ronald and Paul maintain, he is the one who injured both of them? The only answer to these questions is that the appellant could not have been a victim of robbery perpetrated by the other two who got into the vehicle after he hired it. Further it is clear to us that those two other people were his accomplices and he was the one who had asked Peter to stop for them. If that was not so, and if those other people were not his accomplices, we doubt whether he would have agreed to have them enter the vehicle which he had hired and had paid kshs.700/= for the same hire

We agree with the trial court and the learned Judges of the High Court that, the appellant was acting in concert with one or the other two and that Peter’s evidence, as clearly supported by that of Taracius, Ronald and Paul, was credible. Equally, the evidence of Ronald and Paul was also credible as concerns how they incurred their injures at the hands of the appellant. The appellant was caught in action and that cannot be challenged. If he was a victim of the robbery, he would have been the one to rush to the members of the public raising alarm in respect to the attack on him. He would have not run away to the bush. Our informed view on that aspect of the matter is that the two courts rightly rejected the appellant’s claim that he was also a victim of robbery. It cannot possibly be true. There was no dock identification in this case as the witnesses are the ones who in fact demobilized and eventually arrested the appellant. There was no need for identification parade.”

11. In light of the above, and the fact that the complainant was not the only witness in the case against the appellant coupled with the fact that the complainant’s affidavit does not show that there is new and compelling evidence that could not have been availed at the trial, I find and hold that the applicant’s application lacks merit. In any event the complainant’s averments in his affidavit are at variance with the evidence on record.

Conclusion

12. In conclusion, I find that the applicant’s application does not meet the threshold set out under Article 50(6)(b) of the Constitution 2010 with regard to new and compelling evidence. I therefore dismiss the application in its entirety.

Orders accordingly

Ruling delivered, dated and signed in open court at Kakamega this 30th day of November, 2017

RUTH N. SITATI

JUDGE

In the presence of;-

Mr. Imbenzi holding brief for Mr. Swaka...for Applicant

Mr. Jumba…………..….for Respondent

Mr. Polycap…………….Court Assistant