[2011] KEHC 1609 (KLR)
The court held that the applicant failed to demonstrate the existence or nature of new and compelling evidence as required by Article 50(6)(b) of the Constitution. Mere allegations of denial of fair trial rights, without substantiating how those rights were infringed or providing details of the alleged new evidence,...
Source-derived case information.
- Citation
- [2011] KEHC 1609 (KLR)
- Parties
- Applicant: Simon Githu Mbugua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 55 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review/retrial Based on New and Compelling Evidence
- Outcome
- application summarily struck out
- Judges
- MJA Emukule
- Legal Topics
- Right to Fair Trial, New and Compelling Evidence, Post Conviction Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Githu Mbugua
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review/retrial Based on New and Compelling Evidence
Legal Issues
- 1 Whether the applicant has demonstrated the existence of new and compelling evidence as required under Article 50(6)(b) of the Constitution to warrant a retrial or review of his conviction.
- 2 Whether the applicant has established a prima facie case showing denial of the right to a fair trial.
Ratio Decidendi
The court held that the applicant failed to demonstrate the existence or nature of new and compelling evidence as required by Article 50(6)(b) of the Constitution. Mere allegations of denial of fair trial rights, without substantiating how those rights were infringed or providing details of the alleged new evidence, are insufficient to warrant a review or retrial. The burden of proof lies with the applicant to establish a prima facie case and specify the compelling evidence. In the absence of such material, the court found no basis to grant the applicant a right of hearing or to proceed with the application. Consequently, the application was summarily struck out.
Court Disposition
application summarily struck out
Orders
- The summons filed in court on 19th May 2011 is summarily struck out.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
MISC. APPLICATION NO. 55 OF 2011
SIMON GITHU MBUGUA………………………………….......…………..………………..APPLICANT
VERSUS
REPUBLIC………………………………………………………………….……………RESPONDENT
RULING
Sections 21(1), 23(1) and 50 (6)(a) & (b) of the Constitution of Kenya provide as follows -
"S.21(1) It is the fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights, and
Section 23(1) says -
23(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
And Section 50(6)(a) & (b) says -
"50(1) - 5
(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 for appeal.
(b) new and compelling evidence has become available.
The applicant herein says in Chamber Summons, that his rights to a fair trial were denied to him initially, that he has new and very compelling evidence if the application is found meritorious, and that he wishes to be present at the hearing of the application.
In ordinary appeals under the Criminal Procedure Code, a retrial will be ordered when the original trial was illegal or defective. A retrial will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of filling gaps in the evidence in the first trial, even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a re-trial should be ordered.
Each case must depend on its own facts and circumstances and an order for re-trial should only be made where the interests of justice require it.
The Constitution has created a new phenomenon. It has granted enormous privileges not only to the accused but also convicted felons. The latter now have, in a manner of speech, a second bite of the cherry.
The convicted felon has the same rights to institute court proceedings as an ordinary free citizen, claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. For the felon however his right is circumscribed by Section 50(6) (b) that new and compelling evidence has become available.
Whereas subsection 6(a) allows a felon to appeal out of time, and this has been routinely allowed by the courts an appeal under subsection 50(6) (b) is in the nature of a review by the High Court not only of the evidence first before the trial court, but also of its own decisions as the first appellate court. The High Court will have no jurisdiction to review the decision of the Court of Appeal or the Supreme Court.
For the felon to exercise the right of review, it is not enough to allege, as the applicant has done in this application, that he was denied the rights of a fair hearing at the trial, he must also demonstrate in his application, a prima facie case, how these rights were denied. The applicant must also demonstrate the new and compelling evidence that shows he was wrongly convicted and sentenced.
As it is the applicant who is alleging the existence of such new and compelling evidence the onus is on him to state in his application the nature of such compelling evidence. He who alleges the existence of particular facts must prove those facts(S.107 of the Evidence Act, Cap. 80, Laws of Kenya).
If this is not done, I think not only the courts, but the entire judicial system, the investigation, the prosecution and the prison system will be mandated with pleas for review. In addition whereas the right to appeal out of time is open-ended because of delays in production of records, there is need to curb the time within which these rights may be exercised. The Constitution of Kenya(Supervisory and Protection of Fundamental Rights and Freedoms), High Court Practice Rules, 2006 (the Gicheru Rules) need to be examined afresh, and revised to take into account the provisions of the new Constitution of Kenya.
In the circumstances, I must say that there is no material before me upon which I can give the Applicant a right of hearing at this stage.
The summons filed in this court on 19th May 2011 is therefore summarily struck out.
Dated, delivered and signed at Nakuru this 31st day of May 2011
M. J. ANYARA EMUKULE
JUDGE