https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7302

 **REPUBLIC OF KENYA IN THE HIGH COURT AT NYERI** **CONSTITUTIONAL PETITION NO. E008 OF 2024** **IN THE MATTER OF THE BILL OF RIGHTS UNDER ARTICLE 22(1) OF THE CONSTITUTION** **AND** **IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 25(C), 27(1), 50(1)(B)(C), 2(Q) & 165(3)(A), (B) & (D)(I) & (II) OF THE CONSTITUTION** **AND** **IN THE MATTER OF HIGH COURT CRIMINAL APPEAL 33 OF 2018 AT NYERI** **AND** **IN THE MATTER OF CRIMINAL CASE NO. 1002 OF 2016 AT NYERI CHIEF MAGISTRATE’S COURT** **BETWEEN** **GODFREY MUGAMBI WANGUI ……………………..……… PETITIONER** **VERSUS** **DIRECTOR OF PUBLIC PROSECUTIONS.......................... RESPONDENT** **JUDGMENT** 1. The petitioner was charged and convicted of the offense of robbery with violence and grievous harm in Nyeri CMCR 1002 of 2016. In count 1, the petitioner was charged with robbery with violence, contrary to section 295, as read with section 296(2) of the Penal Code. The particulars of the charge were that on 1.10.2016 at Mbiriri sub-location, Kabaru location within Nyeri County, with another not before the court, the petitioner robbed Charles Maina Kiboi Ksh. 7,950/= and immediately before/after such robbery wounded the said Charles Maina Kiboi. 2. In count 2, the petitioner was charged with causing grievous harm contrary to Section 234 of the Penal Code. The particulars of the charge were that on 1.10.2016 at Mbiriri sub-location, Kabaru location within Nyeri County, with another not before the court, unlawfully did grievous harm to Charles Maina Kiboi. 3. He was sentenced to death and appealed vide HCCRA 33 of 2018. The appeal was determined by Ngaah J, on 2.10.2020. In the decision reported as [Godfrey Mugambi Wangui v Republic [2020] KEHC 2926 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/2926/eng%402020-10-02), the learned judge posited as follows: Although the appellant denied in his defence that he did not live at Mbiriri and that only his mother lived there, at least four prosecution witnesses testified that they shared the same neighbourhood with the appellant and the complainant; these witnesses were the complainant himself who was categorical that the appellant was his neighbour; Nderitu (PW2) testified that he was a neighbour to both the appellant and the complainant and that he knew them both; the community policing elder also testified that he knew the appellant and that he was arrested in the same Mbiriri sub location where he lived. Muthoni who lived in the same sub location of Mbiriri testified that he had known the appellant for two years besides the fact that he lived with her step-daughter at some point in time. The appellant never questioned any of these witnesses in cross-examination on this aspect of their evidence. He never challenged Muthoni on her evidence that apart from sharing the same sub location with her, he lived with her step daughter. To deny that he lived at Mbiriri and therefore he could not possibly have been at the locus in quo was an afterthought on the part of the appellant. The learned magistrate was right in dismissing the appellant’s alibi because it had no factual basis; there was simply no evidence to support it. The appellant was bound to raise the defence at the time he pleaded so that the prosecution would have time to test and check it but having been raised for the first time at his defence the best the trial court could do was to weigh it against the prosecution evidence and in my humble view it did. On this point the learned magistrate properly directed herself on the law and applied the decision of Ganzi & 2 Others versus Republic (2005) eKLR where it was stated: “The trial magistrate considered the case of each appellant separately. She weighed the defence of alibi of each appellant against the weight of prosecution evidence. This is the correct approach where the defence of alibi is first raised in the appellant’s defence and not when he pleaded to the charge. See Wangombe versus Republic (1980) KLR 149.” I am satisfied that in coming to the conclusion that the appellant was one of the two people who attacked and robbed the complainant the learned magistrate properly directed herself on the facts and the la 1. The Petitioner filed a notice of appeal on 19.07.2022 but it is not clear whether leave to file the same was obtained. As it stands, he has now filed a petition that the complainant has now seen the light and realized that the petitioner came to his rescue. I directed that the said Charles Maina Kiboi attends court but, as expected never turned up. 2. The petitioner then sought the following orders: 1. This hounourable court be pleased to issue a declaration that the petitioner herein has made a case as provided under Article 50(6) (a) and (b) of the constitution on new and compelling evidence. 2. This hounourable court be pleased to order a new trial strictly on the application of new and compelling evidence of PW1. 3. This hounourable court be pleased to weigh and consider the veracity of this new and compelling evidence. 3. The new and compelling evidence is that the complainant now alleges that he was greatly mistaken as to the identity of the person who robbed him. It was dark in the material day and there was no source of light apart from moonlight whose illumination was not free from error. He was confused on that night as things happened very fast. He later came to realize that the petitioner came as one of the rescuers. 4. Both parties filed submissions. The petitioner maintained that what was purported to be deposed by the complainant was new and compelling evidence. On jurisdiction the petitioner relied on the case of **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd** [1989] eKLR, where Nyarangi JA as he then was stated as doth: “By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given… …Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. 1. He submitted that a person may apply to the High Court for a new trial under Article 50(6) of the constitution. The said Article provides as follows: *(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; and* *(b) new and compelling evidence has become available.* 1. He submitted that he did not appeal to the Court of Appeal within time and there is compelling new evidence. He submitted that he has met both thresholds and in particular the limb of new and compelling evidence. Reliance was placed on the case of *Tom Martins*. 2. He described the new evidence as evidence which the petitioner did not know prior or during the trial process. The evidence must be material and convincing, and not merely speculative. The failure to learn about the evidence was not due to lack of diligence. The said conviction cannot be said not to be free from error. He stated that all along “*he did not know that the complainant did not identify him*.” 3. He submitted that the new evidence will show other people other than the petitioner committed the offence, lose the element of positive identification and persuade the court to reach a different verdict. Reliance was placed on a persuasive decision in **Robert Tom Martins Kibisu v Republic**, Supreme Court Application No. 3 of 2014 [2018] eKLR. 4. He also relied on the case of **Philip Mueke Maingi v Republic** (Petition 436 of 2016) [2017], where Mativo J, as he then was, stated as follows: Fundamentally, the objective of the CJS is that after a fair trial there should be a true verdict. So far as humanly possible there should be no wrongful convictions, and where they occur or if new evidence emerges which undermines the safety of a conviction, they will be quashed and retrial may be ordered … in my view, the architect of article 50 of the Constitution is that after a criminal trial ends in a conviction, the defendant can file a motion for a new trial only after the conditions stipulated in article 50(6) are satisfied. The High Courts can grant an order or re-trial – though rarely – to correct significant errors that happened during trial or if substantial new evidence of innocence comes to light. 1. The respondent filed submissions dated 4.09.2025, where they opposed the petition. Reliance was placed on the case of **Tom Martins Kibisu V Republic of Kenya,** that: [41] Article 50 is an extensive constitutional provision that 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 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”. 1. They submitted that there must be compelling and new evidence. They oppose on the basis of the second limb. Reliance was placed on Petition Number 436 of 2016; **Patrick Mueke V Republic.** 2. The grounds were flimsy and unsubstantiated and an afterthought and blatant abuse of the court process. There is no explanation on how it took the parties 6 years to realize that the complainant was mistaken as to the identity. The evidence adduced when the evidence was still fresh was more probative than now many years later. The respondent pointed to contradictions, the first being in paragraph 4 of the affidavit, where there was said to be no external light and secondly that in paragraph 5 indicates that the appellant was one of the rescuers. The next question is which date was later, that they discovered what the complainant is said to have discovered. 3. They submitted that there was no single rescuer who deponed that the petitioner was also a rescuer. The court was urged to dismiss the petition. Analysis 1. The Petition is premised on Articles 25c, 27(1), 50(1) b and c, 165(3) of the Constitution. The Articles are foundational and may not answer the question that the court is being asked to demine. The power of this court is set out in Article 165(3) of the Constitution as follows: (3) Subject to clause (5), the High Court shall have- (a) unlimited original jurisdiction in criminal and civil matters; (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; (c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144; (d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of- (i) the question whether any law is inconsistent with or in contravention of this Constitution; (ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution; (iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and (iv) a question relating to conflict of laws under Article 191; and (e) any other jurisdiction, original or appellate, conferred on it by legislation. 1. The limitation referred to in Sub-Article 3 relates to matters before two other superior courts, that is the courts of equal status and the Supreme Court. Article 165(5) provides as follows: *(5) The High Court shall not have jurisdiction in respect of matters-* *(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or* *(b) falling within the jurisdiction of the courts contemplated in Article 162(2).* 1. On the other hand, the right to fair trial is sacrosanct and cannot be limited. This is in line with Article 25(c ) of the Constitution which provides as follows: **Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited-** **(a) …** **(b) …** **(c) the right to a fair trial; and** **(d) …** 1. The petitioner relied on Article 27(1) of the constitution to buttress his position that he is entitled to equal protection of the law. The impugned Article provides as follows: *(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.* 1. Finally, there is reliance on Article 50 (1) and (2) (b), (c) and (q) and 6 of the Constitution that provides as follows: (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. (2) Every accused person has the right to a fair trial, which includes the right- (b) to be informed of the charge, with sufficient detail to answer it; (c) to have adequate time and facilities to prepare a defence; (q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. (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; and (b) new and compelling evidence has become available. 1. The petition raises a single issue, that is, whether there is new and compelling evidence necessitating a new trial. 2. The Supreme Court deliberated on the question of new evidence as follows: [28] It is therefore, without belaboring the point any further, a fact that this Court has the jurisdiction to hear and determine an application for leave to adduce additional or new evidence. What is also apparent is that the exercise of that jurisdiction shall not be whimsical, and the Court would not be in haste in granting the same. It has to consider all the relevant prevailing circumstances and make such order as it would deem fit in the interests of justice. [29] In the Wajir case [***Mohamed Abdi Mahamad v. Ahmed Abdullahi Mohamed & 3 others*** SC Petition Nos. 7 & 8 of 2018; [2018] eKLR (***Wajir***) and ***Attorney General v. Paul Kawanga Semwogerere & 2 others*** Constitutional Application No. 2 of 2004; [2004] UGSC 3.], this Court set out the principles that it would consider in considering an application for leave for additional or new evidence before the superior Courts. We are further minded to state that even with the said principles being the basis for grant of such leave, this Court would still determine each application on a case by case basis, and even so, act with restraint and abundance of caution in allowing additional evidence. [30] The principles as developed in that case are that; 1. The additional evidence must be directly relevant to the matter before the court and be in the interest of justice; 2. It must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive; 3. It is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence; 4. Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit; 5. The evidence must be credible in the sense that it is capable of belief; 6. The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively; 7. Whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process; 8. Where the additional evidence discloses a strong prima facie case of willful deception of the court; 9. The court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The court must find the further evidence needful. 10. A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case. 11. The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other. 12. The court then has to juxtapose these principles to the case herein. The petitioner offered an alibi defence at his hearing. His case is that he did not know that the complainant had not actually identified him. This means that the fact that the complainant is now prevaricating whether or not he properly identified is the new evidence. However, had the complainant stuck to his guns, then there was no new evidence. Consequently, the evidence is not new. It is not even evidence at all. The complainant was not a single identifying witness. Even if the evidence is adduced it will not aid in the alibi defence. The alibi will thus crumble. 13. The petitioner has not shown that the additional, new and fresh evidence could not have been obtained with reasonable diligence for use at the trial, was not within his knowledge, or could not have been produced at the time of the suit. Indeed, the words spoken by Martin, Godfrey, we are going to tell this person right now do not change the facts. Evidence of PW2 was that the complainant told him that he knew the attackers very well. PW5 and PW2 found PW1 had been beaten. The petitioner’s evidence was that he was framed. It was not his evidence that he was a rescuer. 14. The Supreme Court in **Tom Martins Kibisu -vs- Republic** [2022] eKLR describes “new evidence” as “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” as “evidence that would have been admissible at the trial, of high probative value and capable of belief, and which would probably have led to a different verdict.” 15. The so-called evidence is neither new, compelling or even evidence. It is even doubtful that the affidavit signed was signed by the complainant. He did not appear in court despite orders that he does so. 16. The net effect is that the petition lacks merit and is accordingly dismissed. Determination 1. I make the following final orders: 2. The petition lacks merit and is accordingly dismissed. 3. Right of appeal 14 days. 4. File is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **26th** day of **May, 2026**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Petitioner present Mr. Kihara for the State S.Sgt. Isaac Nyaencha at Naivasha Maximum Prisons Court Assistant - Martin