[2017] KEHC 4815 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO 436 OF 2016

IN THE MATTER OF ARTICLES 21 (1), (3), 22 (1) (3) (F), 27 (1), 50 (1) 51 (2), 159 (1) AND 258 (1) OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF RULE 4 OF THE CONSTITUTION OF KENYA PRACTICE AND PROCEDURE RULES

AND

IN THE MATTER OF CRIMINAL PROCEDURE CODE CAP 75, LAWS OF KENYA

AND

IN THE MATTER OF CRIMINAL APPEAL NUMBER 58 OF 2012, HIGH COURT OF KENYA, NAIROBI

AND

IN THE MATTER OF CRIMINAL CASE NUMBER 115 OF 209, AT MILIMANI LAW COURT

BETWEEN

PHILIP MUEKE MAINGI..................PETITIONER

VERSUS

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

JUDGEMENT

The petitioner was tried and convicted of the offence of defilement contrary to section 8as read with section 8 (2) of the Sexual Offence Act in Magistrates criminal case number 115 of 2009-Milimani, Nairobi. He was sentenced to life imprisonment on 25th January 2012.

His appeal to the High court was unsuccessful.[1] He has now petitioned to this court seeking an order of retrial under article 50 (6)of the constitution alleging denial of access to justice, that he was not given adequate time and facilities to prepare for his defence, that the court failed to compel witnesses who feared reprisal to testify and that the court disregarded evidence that supported his alibi. He states that the foregoing omissions amounted to violation of his rights.

The petition is opposed. On record is a Replying affidavit filed on 14th March 2017 stating that the petitioner was accorded fair trial, that the issues raised in this petition were raised in his appeal to the High court but upon consideration the court dismissed the appeal for lack of merits, and that article 50 contemplates a situation whereby new and compelling evidence has been availed to the court, and that the petitioner has not exhausted his rights of appeal to the court of appeal.

Articles 165 (3) (d) (i) & (ii)of the constitution provides that the High Court has power to hear any question respecting the interpretation of the Constitution including the determination of the question whether or not any law is inconsistent with or in contravention of the constitution and also the question whether anything said to be done under the authority of the constitution or of any law is in consistent with, or in contravention of the constitution. Article 50 (6) (a) & (b) of the Constitution postulates that:-

(6) 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; and

(b) new and compelling evidence has become available.

Fundamentally, the objective of the criminal justice process is that after a fair trial there should be a true verdict. So far as humanly possible, there should be no wrongful convictions, and where they occur, or if new evidence emerges which undermines the safety of a conviction, they will be quashed and re-trials may be ordered.[2] The foregoing position is articulated in Article 50 (6) which lays down the following conditions, (a) the petitioner must have exhausted the laid down appeal mechanism open to himorthe person did not appeal within the time allowed; and (b) there must be new and compelling evidence. The question, however, is whether the petitioner has met the above conditions which are critical criteria under Article 50(6).

The petitioner did appeal to the High Court, but has not appealed to the Court of Appeal against the High Court judgment. Hence, he has not exhausted the available appeal mechanism open to him, hence he does not meet the first test. However, the High court decision was rendered on 8th October 2015. The period for filing an appeal to the court of appeal has since lapsed. However, the petitioner did not explain why he did not pursue his appeal to the Highest court in the land, but since the time prescribed for fling his appeal has lapsed, it can be said his case falls under the second part of (a) above.

The other test under Article 50(6) of the Constitution to warrant the court to allow a fresh trial is the requirement that the petitioner must demonstrate that there is new and compelling evidence. This provision has been the subject of several decisions of the High Court.[3]The authorities demonstrate that in order for a petition under Article 50(6) of the Constitution to succeed, the petitioner must adduce new evidence in the sense that it must not have been available to the petitioner 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 two appeals.

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 petitioner to the extent that it may possibly persuade a court of law to reach an entirely different decision than that alreadyreached.[4]

"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.[5]

I have carefully examined the reasons offered by the petitioner as listed above. The petitioner was represented by an advocate in the lower court. His advocate applied for witnesses summons and the court granted the same. At the next court attendance, the advocate applied to close the case. To me, the allegation that the petitioner was not allowed to call witness cannot be true. He was not forced to close his case. His advocate applied to close his case.

The judgment of the High court in the petitioners appeal summarizes the grounds of appeal advanced by the petitioner and it clearly shows that some of the allegations raised in this petition were also raised in the High court and High court considered the said allegations in its judgment. The same grounds cannot form the basis of the petition now before this court nor can this court sit on appeal on a decision of the court of the High court. That was not the intention of article 50 of the constitution which limits this court's jurisdiction to the grounds stated above, namely new and compelling evidence.

The petitioner has not proved the alleged contravention of his constitutional rights. To my mind, a person who alleges contravention of constitutional rights has a duty to give particulars of the alleged rights which he or she alleges have been contravened and also clearly demonstrate how they have been violated or threatened.

Black's Law Dictionary,[6]defines “new”as: “recently discovered, recently come into being.Taxmann’s Law Dictionarystates that the word “new”must be construed as meaning “not existing before, newly made, or brought into existence for the first time,” and in contradistinction and antithesis of the word “used”.[7]

The Concise Oxford English Dictionary[8] defines compellingas “powerfully evoking attention or admiration.”This definition was also adopted in the case of Rodgers Ondiek Nyakundi and 2 Others -vs- Republic[9]

In my view, this definition implies that the evidence said to be new and compelling must have been recently discovered or has just come into being and is evidence that will evoke attention and rouse a great deal of interest. The petitioner has not explained when the alleged new and compelling evidence became available or why it was not adduced at the trial and what difference if any it would make if retrial is ordered. The witnesses did exist at the time of the trial. They are not new in the sense that they have just been discovered.

I appreciate that a difficult balancing exercise is required in determining what amounts to new and compelling evidence. I also strongly feel we must not set the test too low or too high or too wide. What is crucial is to establish a very high test regarding the calibre of the fresh evidence and its likely consequences in a trial. It is the function of this court to determine whether there is enough evidence to justify quashing an acquittal and ordering a fresh trial, in which case the court should focus totally on the quality of the evidence. Perhaps phraseology such as, ''the evidence must be new and compelling, and it must be essential, in the interests of justice, that a new trial should take place'' would be appropriate. Perhaps that would sufficiently express how powerful the new evidence would need to be.

It must be demonstrated that the new and compelling evidence casts doubts on the conviction. The requirements are only met if there is new and compelling evidence against the petitioner in relation to the offence. I should emphasize that evidence is new if it was not adduced in the proceedings in which the person was convicted and was not within the knowledge of the petitioner in spite of exercise of due diligence. Evidence is compelling if (a) it is reliable, (b) it is substantial, and (c) in the context of the outstanding issues, it appears highly probative of the case against the convicted person. The outstanding issues are the issues in dispute in the proceedings in which the person was convicted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related.

It is now an established fact that under Article 50(6), “new evidence” means “evidence which was not available at the time of trial and which, despite exercise of due diligence, could not have been availed at the trial”; and “compelling evidence” implies “evidence that would have been admissible at the trial, of high probative value and capable of belief, and which, if adduced at the trial would probably have led to a different verdict”. A court considering whether evidence is new and compelling for a given case, must ascertain that it is,prima facie,material to, or capable of affecting or varying the subject charges, the criminal trial process, the conviction entered, or the sentence passed against an accused person.[10]A similar position was up held by the court of appeal inLieutnant Martin Kibisu vs Republic[11] where the court defined new evidence"as evidence which was not available during trial after exercise of due diligence."

For a petition under article 50 to succeed, this court must be satisfied that the petition is based on the fresh and compelling evidence exception and it is likely that a new trial would be fair having regard to the circumstances of the case. Evidence is new if it was not adduced at the trial of the offence; and it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and ‘compelling’ if- it is reliable; and it is substantial; and it is highly probative in the context of the issues in dispute at the trial of the offence.

In my view, the architect of article 50 of the constitution is that after a criminal trial ends in a conviction, the defendant can file a motion for a new trial only after the conditions stipulated in article 50 (6) are satisfied. The High courts can grant an order or re-trial —though rarely—to correct significant errors that happened during trialor if substantial new evidence of innocence comes to light. It must be shown that the new and compelling evidence will correct such significant errors, and that such evidence was not available during the trial and could not have been available even with the exercise of due diligence.

The new evidence generally must have been unknown to the defense during trial, could not have been reasonably possible to discover before or during trial, and can be capable of causing the court to reach a different verdict.

All the authorities cited above are in agreement that courts are extremely clear about what "new evidence" means. At the risk of repeating myself, it can safely be said there are four criteria that must be met for new evidence to considered in a petition for a new trial:-

1. The evidence is newly discovered and the petitioner did not know about it prior to, or during the trial;

2. The evidence must be material and not merely cumulative;

3. The petitioners failure to learn about the evidence before the verdict was not because of lack of diligence; and

4. The new evidence is significant enough that it would likely result in a different outcome if a new trial is granted.

The petitioner is under a duty to establish the above four conditions. From the material before me, I am not persuaded that the petitioner has discharged this duty. In the circumstances, therefore, I am not satisfied that the petitioner has met the criteria set out in Article 50 (6) (a) & (b) of the constitution. Accordingly, I find that the petitioner's petition has no merits and I hereby dismiss it.

Orders accordingly

Signed, dated and delivered at Nairobi this28thday ofJune2017

John M. Mativo

Judge

[1] High Court Criminal Appeal No 58 of 2012-Nairobi

[2] R -vs- A (2008) EWCA Crim 2908

[3] among them; Ramadhan Juma Abdalla and 3 Others -vs- R Nairobi Petition No. 468 of 2012[2013]eKLR, Wilson Thirimba Mwangi -vs- Director of Public Prosecutions, Nairobi Petition No. 271 of 2011, [2012]eKLR, Mohamed Adbulrahman Said and Another -vs- Republic Mombasa Criminal Misc. Appl. Nos. 66A and 66B of 2011 (Unreported).

[4] Maurice Odhiambo Wesonga -vs- Republic, High Court Petition No. 4 of 2013

[5] R -vs- A (2008) EWCA Crim 2908

[6] 8th Edition

[7] (D.P Mittal, Taxmann’s Law Dictionary (Taxmann Allied Services (P) Ltd, New Delhi).

[8] 9th Edition

[9] Criminal Appeal 135 of 2006.

[10] Supreme Court in Tom Martins Kibisu vs Republic [2014]

[11] supreme court petition no. 3 of 2014