[2018] KEHC 5304 (KLR)
The court held that while Article 50(6) of the Constitution grants a right to a new trial, this right is not automatic. The applicant must demonstrate that new and compelling evidence has become available. In this case, the applicant's only ground was that he did not get a fair hearing, which the court found does...
Source-derived case information.
- Citation
- [2018] KEHC 5304 (KLR)
- Parties
- Applicant: Wycliffe Omatto Masese; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 12 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Fresh Trial After Conviction
- Outcome
- application dismissed
- Legal Topics
- Fresh Trial, New and Compelling Evidence, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wycliffe Omatto Masese
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Fresh Trial After Conviction
Legal Issues
- 1 Whether the applicant is entitled to a fresh trial under Article 50(6) of the Constitution.
- 2 Whether the applicant has demonstrated the existence of new and compelling evidence as required by law.
Ratio Decidendi
The court held that while Article 50(6) of the Constitution grants a right to a new trial, this right is not automatic. The applicant must demonstrate that new and compelling evidence has become available. In this case, the applicant's only ground was that he did not get a fair hearing, which the court found does not amount to new and compelling evidence but rather constitutes a ground of appeal. Furthermore, the applicant failed to specify why he believed his trial was unfair and did not provide the trial proceedings. In the absence of new and compelling evidence, the application for a fresh trial lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for a fresh trial is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYAMIRA
MISC. APPLICATION NO. 12 OF 2018
WYCLIFFE OMATTO MASESE..............APPLICANT
VERSUS
REPUBLIC..............................................RESPONDENT
(Being an appeal against the Judgement and Decree of Hon. N. Kahara – SRM
delivered on 14th September 2017 at Keroka Law Courts)
RULING
The Applicant in this case filed a Notice of Motion dated 24th April 2018 seeking leave to appeal out of time. The grounds for the application were that he became ill and was not in a position to appeal immediately after the conviction. He annexed a petition of appeal to the application. However, this morning he abandoned that application and opted instead to urge the Court for a fresh trial, his only ground being that he feels he did not get a fair hearing during the trial.
The application was opposed. Mr. Ochieng, the Prosecution Counsel submitted that as the Applicant had not demonstrated that he had new and compelling reasons, his application could not succeed.
I have considered the application and the submissions by both sides.
The right to a new trial is enshrined in Article 50 (6) of the Constitution. That right accrues even where the Applicant did not prefer an appeal. This is as provided in Article 50 (6) (a) which states:-
“(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 the appeal;…”
The right to a new trial while it accrues to the Applicant is however not automatic. Sub-article (b) provides that he must demonstrate that new and compelling evidence has become available. In the instant application, the Applicant stated that his only ground is that his trial was not fair. In my view that is not new and compelling evidence and if anything it is a ground for appeal. Moreover he did not tell the Court, even upon much prodding, why he thought his trial was not fair and he did not avail the proceedings of his case. In the absence of new and compelling evidence this application lacks merit and is dismissed.
It is so ordered.
E. N. MAINA – J
17/07/2018
Delivered in open Court in the presence of Mr. Ochieng for DPP and the Applicant.
Interpreter – Millicent
E. N. MAINA – J
17/07/2018