[2012] KEHC 174 (KLR)
The court found that the applicant's appeal had not been dismissed by the highest court to which he was entitled to appeal, as the appeal to the Court of Appeal was still pending. The applicant also failed to demonstrate that he had unsuccessfully applied to appeal out of time. Furthermore, the court held that no...
Source-derived case information.
- Citation
- [2012] KEHC 174 (KLR)
- Parties
- Applicant: Philip Nzavuli Kisavi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 15 of 2012
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Retrial
- Outcome
- application dismissed
- Legal Topics
- Retrial Applications, New and Compelling Evidence, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Philip Nzavuli Kisavi
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Retrial
Legal Issues
- 1 Whether the applicant is entitled to a retrial under Article 50(6) of the Constitution.
- 2 Whether new and compelling evidence has become available to warrant a retrial.
- 3 Whether the applicant's appeal has been dismissed by the highest court to which he is entitled to appeal.
Ratio Decidendi
The court found that the applicant's appeal had not been dismissed by the highest court to which he was entitled to appeal, as the appeal to the Court of Appeal was still pending. The applicant also failed to demonstrate that he had unsuccessfully applied to appeal out of time. Furthermore, the court held that no new and compelling evidence had been presented. The issues of lack of legal representation and calling of defence witnesses were matters that had already been addressed in the first appeal. The court concluded that there were no procedural irregularities or miscarriage of justice that would warrant a retrial, and thus the application lacked merit.
Court Disposition
application dismissed
Orders
- The application for retrial is dismissed.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
Criminal Miscellaneous Application 15 of 2012 [if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]
(An application for a retrial vide Article 50 (6) of the Constitution of Kenya)
PHILIP NZAVULI KISAVI ......................................... APPLICANT
VERSUS
REPUBLIC ............................................................ RESPONDENT
R U L I N G
The applicant, PHILIP NZAMULI KISAVIwas convicted of the offence of robbery with violence contrary to Section 296 (2) of the Penal Code and sentenced to death in count I.
The applicant was sentenced as follows in the other counts:-
Count II – Assault causing actual bodily harm contrary to Section 251 of the Penal Code and sentenced to one year imprisonment.
Count III – Assault causing actual bodily harm contrary to section 251of the Penal Code and sentenced to one year imprisonment.
Count IV – possessing a firearm without a firearm certificate contrary to section 4(1) as read with section 4 (3) (a) of the firearms Act and sentenced to ten (10) years imprisonment.
Count V – possessing ammunition contrary to section 4 (1) as read with section 4 (3) (a) of the firearms Act and sentenced to five (5) years imprisonment.
The sentences in count II – V were held in abeyance due to the sentence of death in count I.
His appeal to the High Court was dismissed on 5. 11. 2008.
The applicant subsequently applied for a retrial vide the Notice of Motion dated 23. 1.12 under article 50 (6) (a) and (b) and article 165 and 25 (c) of the Constitution.
The grounds upon which the application is based are that his appeal was dismissed by the High Court. He stated he did not have an advocate when his case was heard. It was further added that there was new and compelling evidence in that the Prosecution witnesses who testified during the trial had been compromised by his business rivals.
Ms Ngovi for the State objected to the application and submitted that no strong issues had arisen for a retrial to be held. She further submitted that the court of Appeal is yet to hear the applicant’s appeal.
Article 50 (6)of the Constitution provides as follows:-
“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.”
Article 165 of the Constitution sets out the jurisdiction of the High Court.
The appellants appeal has not been dismissed by the highest court to which he is entitled to appeal. If the applicant did not appeal within the time allowed for appeal, he has not demonstrated that his application to appeal out of time has not been successful. There is also no new and compelling evidence that has become available. The issue of calling of defence witnesses and lack of advocate were matters that fell within the ambit of the first appeal.
In addition to the Constitution, I have considered the Principles to be applied when considering whether or not to order a retrial as re-stated by the Court of Appeal in the case of BERNARD LOLIMO EKIMAT VS R. CA NO.151 OF 2004 (ELDORET).
“There are many decisions on the question of what appropriate case would attract an order of retrial, but on the main the principle that has been acceptable to court is that the case must depend on the particular facts and circumstances of that case but an order for retrial should only be made where interests of justice required it.”
In the instant case, after considering the issues raised by the applicant, I have not seen any procedural irregularities that go to the core of the matter and can be said to have occasioned a miscarriage of justice.
The application has no merits and is dismissed.
Delivered, dated and signed at Kakamega this 19th day of December, 2012
B. THURANIRA JADEN
J U D G E