REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

MISC. APPLICATION NO. 2 OF 2015

GEOFFREY MONGARE ONDIMU…….……...….APPLICANT

=VERSUS=

REPUBLIC………………….…………….……..RESPONDENT

JUDGMENT

This is a petition by the applicant seeking a retrial of his matter.  He was charged with an offence of defilement of a girl contrary to Section 145(1) of the Penal Code.  The particulars being that on the 14^th day of November, 2003 in Nyamira District of the Nyanza Province, unlawfully had carnal knowledge of S K N, a girl under the age of 16 years.

Alternatively, he was also charged with: indecent assault on female contrary to Section 144(1) of the Penal Code.  The particulars thereof were that on the 14^th day of November, 2003 in Nyamira District of Nyanza Province, unlawfully and indecently assaulted S K N, a girl under the age of 16 years by touching her private parts.

The accused pleaded not guilty and the trial proceeded and the accused found guilty and sentenced to 30 years imprisonment by the then Principal Magistrate, in Nyamira under Criminal Case No. 901 of 2003.

The applicant states that he appealed first to the High Court in Kisii and then to the Court of Appeal at Kisumu.  Both appellate courts confirmed the conviction and the sentence meted out to him by the Nyamira Court.

Eleven years later, the applicant has brought a miscellaneous application/petition in which he seeks a retrial of his case under Article 50(b) a & b of the Kenyan Constitution.

This Article says:  “A person who is convicted of a criminal offence may petition the High Court for a new trial if:-

1. The person’s appeal, if any, has been dismissed by the highest court to which the person is entitle to appeal, or the person did not appeal within the time allowed for appeal; and
2. New and compelling evidence has become available.”

The applicant briefly stated says:  “he is … aggrieved and dissatisfied with the Judgment delivered by the Subordinate Court(s) and that is the main purpose of … me … requesting for new trial at High Court to have a consideration on this fair and other grounds will be adduced at the time of hearing this application.”

In addition, he said that during the hearing of his case at Nyamira he was sick.  He said he informed the court about his sickness but the court declined to listen.  The court asked the applicant if he had any compelling reasons which is now available but which was not then.  He said he had none.

The Respondent’s submissions

1. The state, through learned counsel Malesi, opposed the applicant’s application.  He submitted that the provision of Article 50(6) (a) & (b) are so clear as to when such application could be brought.  The applicant’s application is not one that falls under these provisions.  He referred to the case of:

Muiruri =vs= Republic, Kenya Law Reports page 552

2. In that case the court held that if the court were to order a retrial will depend on the following circumstances:

1. The interest of justice requires that therebe a retrial
2. The retrial will unlikely cause injustice to the applicant
3. There are blatant defect in the original trial.
4. A great lapse of time, since arrest and arraignment in court, has not taken place.

3. All these circumstances doesn’t favour the applicant.

4. The reasons has given today must have been dealt with in both High Court and the Court of Appeal, and they all don’t come into the purview of the provisions of Article 50(6) (a) & (b) of the Constitution.

5. His prayer is that the application be dismissed.

FINDINGS AND CONCLUSION

This court finds that the applicant has not made out his case with sufficient reasons to be considered in his favour.

Accordingly, this application by Geoffrey Mongare Ondimu be and is hereby dismissed.

Dated and delivered at Nyamira on this 19th day of October 2015

C. B. NAGILLAH

JUDGE

In the presence of:

Applicant in person  for the applicant

Malesi  for the respondent

Mercy Court Clerk