[2020] KEHC 2702 (KLR)
The court found that the petitioner failed to establish the existence of new and compelling evidence that would justify a re-trial. The petitioner did not demonstrate how the Occurrence Book was material to his defence or that he was denied access to it after making a request. Additionally, there was no affidavit...
Source-derived case information.
- Citation
- [2020] KEHC 2702 (KLR)
- Parties
- Petitioner: Stephen Mabili; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 14 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Petition for Re Trial
- Outcome
- petition dismissed
- Judges
- CM Njagi
- Legal Topics
- Retrial Applications, New and Compelling Evidence, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Mabili
Petitioner
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Petition for Re Trial
Legal Issues
- 1 Whether the petitioner has established the existence of new and compelling evidence to warrant a re-trial.
- 2 Whether the petitioner was denied a fair trial due to lack of access to the Occurrence Book and witness statements.
Ratio Decidendi
The court found that the petitioner failed to establish the existence of new and compelling evidence that would justify a re-trial. The petitioner did not demonstrate how the Occurrence Book was material to his defence or that he was denied access to it after making a request. Additionally, there was no affidavit from his trial advocate confirming that witness statements were withheld. The court held that the allegations were unsubstantiated and did not meet the threshold for ordering a re-trial. The application before the court was strictly for a re-trial, and the petitioner could not convert it to a re-sentencing application during the hearing. Consequently, the petition lacked merit...
Court Disposition
petition dismissed
Orders
- The petition dated 9th October, 2018 is dismissed.
- The petitioner is at liberty to file an application for re-sentencing.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL PETITION NO. 14 OF 2019
STEPHEN MABILI ..................................................... PETITIONER
VERSUS
REPUBLIC .............................................................. RESPONDENT
RULING
1. The petitioner has filed a petition dated 9th October, 2018 seeking for an order of re-trial in Kakamega High Court Criminal No. 28 of 2008 where he was tried and convicted of the offence of murder. The grounds in support of the petition are that there is discovery of new and compelling evidence that was not in his knowledge during the trial.
2. The petition is supported by the affidavit of the petitioner. The petitioner contends that he was not given an opportunity to peruse the Occurrence Book during the trial process. That the Occurrence Book report was not within his knowledge until after the completion of the trial. Further that during the trial process he was not provided with statements of prosecution witnesses to enable him prepare for his defence. That failure to do so prejudiced his trial. That in the premises he was not accorded an impartial and a fair trial. That his fundamental rights were thereby violated during the trial. Therefore that the court should make an order for re-trial.
3. The State did not file a reply to the petition.
4. I have considered the petition. The petitioner was represented by an advocate, a Mr. Nandi during the trial. The advocate has not deponed an affidavit to the effect that he was not provided with copies of witness statements during the trial. The petitioner has not proved the assertion that he was not provided with copies of witness statements during the trial.
5. The petitioner contends that he was not given an opportunity to peruse the Occurrence Book. He has however not shown how the evidence contained in the Occurrence Book was important in the case. There is no evidence that he sought to be supplied with a copy of the Occurrence Book and the same was denied to him. There is no substance in this allegation.
6. In the foregoing the petitioner has not established the existence of new and compelling evidence that can persuade this court to order a re-trial. As to what constitutes such evidence, see James Mwaniki Kamau –V- Republic (2018) eKLR and Philip Mueke Maingi –V- Republic (2017) eKLR.
7. During the hearing of the petition, the petitioner stated that what he was seeking is re-sentencing. However this is not the application that was before court. The application before court was for an order for re-trial. He cannot change a petition for re-trial to one of re-sentencing during the hearing of the petition. He ought to have filed an application for re-sentencing if that is what he wanted.
8. The upshot is that there is no merit in the petition dated 9th October, 2018. The same is dismissed. The petitioner is at liberty to file an application for re-sentencing.
Delivered, dated and signed at Kakamega this 30th day of September, 2020.
J. N. NJAGI
JUDGE
In the presence of:
Mr. Mutua for State/Respondent
Petitioner – Present through video link to GK Prison, Kakamega
Court Assistant - Polycap
14 days right of appeal.