https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7702

Republic v Waithaka alias Champe (Criminal Case E004 of 2023) [2026] KEHC 7702 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7702 (KLR) Republic of Kenya In the High Court at Thika Criminal Case E004 of 2023 FN Muchemi, J May 28, 2026 Between Republic Prosecution and John Kiarie Waithaka alias Champe Accused Ruling Brief Facts 1.Coming up for determination is the prosecution’s Notice of Preliminary Objection dated 12th May 2026 based on the grounds that the applicant has failed to exhaust his right of appeal as provided in Article 50(6) of the Constitution. For the accused to petition for a new trial, must show that the conviction has been affirmed on appeal. Further, the accused failed to meet the new and compelling threshold as the evidence could have been obtained with reasonable diligence during the original trial hence the application offends Article 50(6) of the Constitution. The prosecutor further states that the application is premature as the accused has not been sentenced or has not filed an appeal. Furthermore, the prosecutor argues that this court being the trial court lacks jurisdiction to hear a retrial petition. 2.Parties put in written submissions. The Prosecutor’s Submissions 3.The prosecutor relies on Article 50(6) of the Constitution and the case of Philip Mueke Maingi & 2 others vs Republic [2022] eKLR and submits that the accused has not exhausted the appellate court to determine whether new and compelling evidence can be adduced. The accused has jumped the gun as he has not been sentenced and thus he ought to pursue the issue of new evidence in the appellate court after being sentenced. The prosecutor submits that the accused has failed to exhaust appeals and further the instant court lacks jurisdiction to hear a retrial petition. 4.Relying on the case of Tom Martins Kibisu vs Republic [2022] eKLR, the prosecutor submits that new and compelling evidence is evidence that on the face of it is material to, or capable of affecting or varying the subject charges, the criminal trial process, the conviction entered or the sentence passed. The prosecutor submits that the alleged fresh evidence is not new or compelling but it is additional evidence of the same kind that was available before. The alleged fresh evidence is what the accused stated in his defence and therefore it is not capable of affecting or varying the subject charges, the criminal trial process or the conviction entered. 5.The prosecutor submits that the court has become functus officio and thus lacks the power to reopen the case under Article 50(6) of the Constitution. The Accused’s Submissions 6.The accused refers to Article 50(6) of the Constitution and the case of Stanley Kamario Ethangatha vs Republic [2016] KEHC 3249 (KLR) and submits that the right to petition for a new trial where new and compelling evidence has emerged is not a privilege to be lightly denied. The accused further submits that the prosecution has misconstrued Article 50(6) of the Constitution and argues that the provision contemplates that a petition may be brought where the person did not appeal within the time allowed. The accused further argues that the constitution must be interpreted broadly and purposively and a narrow, technical reading that shuts out the wrongly convicted is no reading of Article 50(6) at all. 7.The accused argues that the question of whether evidence is new and compelling and whether it could have been obtained with reasonable diligence is a question of fact and cannot be resolved without hearing from the applicant and without examining the evidence. The accused refers to the case of Albert Magu Musa vs Attorney General [2015] KEHC 4838 (KLR) and submits that the applicable test is not whether such evidence existed somewhere in the world but whether it was truly available to the petitioner at the material time. The accused further submits that the evidence currently presented could not have been so procured and it is compelling because it is admissible, credible and strikes at the very foundation of the conviction itself. The accused submits that he found a witness who had relocated to Ol Kalau, a fact that he could not have known. The said witness was at the scene before the accused arrived and after the accused arrived and his statement will clear the doubt that this court had. 8.Relying on Article 165(3)(a) of the Constitution, the accused submits that the High Court of Kenya is a superior court of record and therefore has the jurisdiction to entertain the said petition under Article 50(6) of the Constitution. Further, the accused argues that the constitutional language of Article 50(6) does not prescribe sentencing as a precondition for invoking the provision. The court may entertain a petition where the interests of justice demand and where new and compelling evidence has emerged. The Law Whether the preliminary objection is sustainable 9.The case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection. The court observed thus:-…..a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. 10.Sir Charles Newbold P. stated:-A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop. 11.Similarly the Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR held that:-A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. 12.Further in the case of Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others, [2014] eKLR the court held that:-Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record. 13.Evidently, a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law. 14.The prosecutor argues that the application dated 4th May 2026 is premature and incompetent as the accused person has not met the threshold of retrial pursuant to article 50(6) of the Constitution as he has not exhausted his appeals and he has failed to provide new and compelling evidence. It is my considered view that the issue of contention is whether the accused person has demonstrated that the case can be reopened for retrial pursuant to article 50(6) of the Constitution which determination is a purely point of law and falls within the ambit of a preliminary objection. 15.Article 50(6) of the Constitution provides:-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; andb.New and compelling evidence has become available. 16.The Supreme Court in Tom Martins Kibisu vs Republic, Supreme Court Petition No. 3 of 2014 eKLR observed that:-Article 50 is an extensive constitutional provision tat guarantees the right to a fair hearing and, as part of that right, it offers to persons convicted of certain criminal offences another opportunity to petition to the High court for a fresh trial. Such a trial entails a re-constitution of the High Court forum, to admit the charges and conduct a re-hearing, based on the new evidence. The window of opportunity for such a new trial is subject to two conditions. First, a person must have exhausted the course of appeal, to the highest court with jurisdiction to try the matter. Secondly, there must be new and compelling evidence.We are in agreement with the Court of Appeal 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. 17.Similarly in Rogers Ondieki Nyakundi vs State (2012) eKLR the court held that in order to successfully establish that one has new and compelling evidence in an application under Article 50(6) of the Constitution, it must be shown that:-There is new evidence which must not have been available to him during the trial, and that such evidence could not have been obtained with reasonable diligence for use at trial or that the evidence was not available at the time of the hearing of the two appeals.The evidence is compelling, is admissible and credible and not merely corroborative, cumulative, collateral or impeaching. Such evidence must not only be favourable to the petitioner, but it must be such evidence as is likely to persuade this court to reach an entirely different decision from the decision already reached by the two appellate courts. 18.It is noted that judgment against the accused person was entered on 12th March 2026. Sentencing was scheduled for 4th May 2026. However the accused person filed the application dated 4th May 2026. It is evident that the accused person failed to file a petition as provided by Article 50(6) of the Constitution but instead filed a Notice of Motion. Furthermore, the accused has not exhausted all his appeals as he is yet to be sentenced by the present court. 19.On the issue of new and compelling evidence, the accused person argues that he wishes to call a witness to support his defence and the said witness shall testify that he was present at the scene or near the scene of the altercation on the material night; that he directly witnessed the events that transpired between the deceased, Kevin Mungai and David Musyimi including the manner in which the fatal blows were administered; that the accused person did not assault the deceased and in fact attempted to restrain the aggressors and that the fatal injuries inflicted upon the deceased were caused solely by David Musyimi acting alone without the accused person’s participation or common intention. Looking at the defence, the accused person testified that he was at the scene but did not assault the deceased and that it was David Musyimi who attacked the deceased with a broken bottle. Further, the blood stains on the accused person’s clothing resulted from attempts to stop the fight. It is my considered view that the fresh evidence is not new or compelling as it is similar evidence given by the accused person in his defence. Furthermore, the accused person has not shown why he did not call the said witness at the time of the hearing thus the evidence was available all along. Additionally the said evidence does not have the capability to affect or vary the subject charge, the criminal trial process or the conviction entered. 20.Having been convicted of the offence, the defence cannot re-open the case. The defence did not cite any law that allows an application of this nature to be presented at this stage. After conviction, the accused has only one option available to him, that is to appeal against the whole judgment. In the process of the appeal, the accused may apply to adduce additional evidence. 21.It is therefore my considered view that the preliminary objection dated 12th May 2026 has merit and is hereby upheld. Consequently the application dated 4th May 2026 is incompetent and is hereby struck out with no orders as to costs. 22.It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 28TH DAY OF MAY 2026.F. MUCHEMIJUDGE