Case Metadata |
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| Case Number: | Criminal Miscellaneous Application 94 of 2012 |
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| Parties: | JAMIN WAFULA WAMBILIANGA V REPUBLIC |
| Date Delivered: | 19 Dec 2012 |
| Case Class: | Criminal |
| Court: | High Court at Kakamega |
| Case Action: | |
| Judge(s): | B. THURANIRA JADEN |
| Citation: | JAMIN WAFULA WAMBILIANGA V REPUBLIC[2012]eKLR |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
High Court at Kakamega
Criminal Miscellaneous Application 94 of 2012
(An application for a retrial vide Article 50 (6) of the Constitution of Kenya)
JAMIN WAFULA WAMBILIANGA .......................... APPLICANT
REPUBLIC ........................................................... RESPONDENT
The applicant, PHILIP NZAMULI KISAVI was convicted of the offence of robbery with violence contrary to Section 296 (2) of the Penal Code and sentenced to death. His appeal to the High Court is still pending.
The applicant subsequently applied for a retrial vide the Notice of Motion dated 23.1.12 under article 50 (6) (a) and (b) and article 165 and 25 (c) of the Constitution.
The grounds upon which the application is based are that his appeal was dismissed by the High Court. He stated he did not have an advocate when his case was heard. It was further added that there was new and compelling evidence in that the Prosecution witnesses who testified during the trial had been compromised by his business rivals.
Ms Ngovi for the State objected to the application and submitted that no strong issues had arisen for a retrial to be held. She further submitted that the court of Appeal is yet to hear the applicant’s appeal.
Article 50 (6) of the Constitution provides as follows:-
“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.”
Article 165 of the Constitution sets out the jurisdiction of the High Court.
The appellants appeal has not been dismissed by the highest court to which he is entitled to appeal. If the applicant did not appeal within the time allowed for appeal, he has not demonstrated that his application to appeal out of time has not been successful. There is also no new and compelling evidence that has become available. The issue of the first report, pre-trial disclosure of the prosecution case, death sentence and lack of advocate was matters that fell within the ambit of the first trial.
In addition to the Constitution, I have considered the Principles to be applied when considering whether or not to order a retrial as re-stated by the Court of Appeal in the case of BERNARD LOLIMO EKIMAT VS R. CA NO.151 OF 2004 (ELDORET).
“There are many decisions on the question of what appropriate case would direct an order of retrial, but on the main principle that has been acceptable to court is that the case must depend on the particular facts and circumstances of that case but an order for retrial should only be made where interests of justice required it.”
In the instant case, after considering the issues raised by the applicant, I have not seen any procedural irregularities that go to the case of the matter and can be said to have occasioned a miscarriage of justice.
Delivered, dated and signed at Kakamega this 19th day of December, 2012
B. THURANIRA JADEN
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