[2016] KEHC 6140 (KLR)
The court found that the applicant had changed his plea to guilty after five witnesses had testified, thereby admitting the offence. The issues raised in the petition, including the alleged failure to produce the occurrence book, call certain witnesses, or supply statements, were all within the applicant's knowledge...
Source-derived case information.
- Citation
- [2016] KEHC 6140 (KLR)
- Parties
- Applicant: Samwel Muhoni Tunda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 59 of 2014
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application dismissed
- Legal Topics
- Robbery With Violence, New and Compelling Evidence, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Muhoni Tunda
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether there is new and compelling evidence to warrant a review of the conviction and sentence under Article 50(6) of the Constitution.
- 2 Whether the failure to produce the occurrence book, call certain witnesses, or supply statements constituted new and compelling evidence.
Ratio Decidendi
The court found that the applicant had changed his plea to guilty after five witnesses had testified, thereby admitting the offence. The issues raised in the petition, including the alleged failure to produce the occurrence book, call certain witnesses, or supply statements, were all within the applicant's knowledge at the time of trial and appeal. Therefore, these did not amount to new and compelling evidence as required under Article 50(6) of the Constitution. The application was found to be unmeritorious and was dismissed.
Court Disposition
application dismissed
Orders
- The application is disallowed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC CRIMINAL APPL. NO.59 OF 2014
SAMWEL MUHONI TUNDA …...................................APPLICANT
VERSUS
REPUBLIC …...........................................................RESPONDENT
J U D G M E N T
1. The petitioner herein was Charged with the Offence of Robbery with Violence. He was convicted by the lower court and sentenced to suffer death. His appeal to the Court of Appeal was equally dismissed.
2. He has then petitioned this court under the Provisions of Article 50(6) of the current constitution. The same is premised on the fact hat there ought to be a new and compelling evidence which had the court considered it would have arrived at a different finding.
3. This position was upheld in the case of TOM MARTINS KIBISU VRS REPUBLIC (2014 ) eKLRby the Supreme Court.
4. The petitioner's oral submissions centres on the fact that the occurrence Book was not produced and that some witnesses were not called to testify and that he was not supplied with the statements during trial.
5. The learned State Counsel opposed the petition arguing that there was no new and compelling evidence and that all the issues presented by the appellant were within his knowledge.
6. I have perused the judgment in particular of the Court of Appeal and its clear that the appellant changed his plea of not guilty after 5 witnesses had testified. On this ground alone the petition is a non-starter. He well admitted the offence and he cannot now turn around and argue otherwise. In any event the issues he raised were well within his knowledge.
7. I find this application unmeritorious and the same is disallowed.
Dated, signed and delivered this 31st March, 2016.
H. K. CHEMITEI
J U D G E
In the presence of:
….........................for state
…........................for applicant