Kennedy Ochieng Olunga v Republic [2014] KEHC 8856 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT HOMA BAY

MISC. CRIMINAL APPLICATION NO. 7 OF 2014

BETWEEN

KENNEDY OCHIENG OLUNGA …....……………….... APPLICANT

AND

REPUBLIC ……………………...……….…….......... RESPONDENT

JUDGMENT

The matter before the court is in essence an application brought under the provisions of Article 50(6) of the Constitution which 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.

The matter before the court has serious procedural deficiencies. The matter was originally commenced by Notice of Motion dated 21st February 2014 in which he sought leave to adduce further evidence. The second application was a chamber summons filed on 11th February 2014 in the applicant contended that new and compelling evidence had come to light and therefore Article 50(6) of the Constitution was applicable. His affidavit did not depone to what evidence had become available. The third application was a Notice of Motion dated 16th September 2014 seeking to amend the petition when in fact no petition was filed or amended petition was filed.

As pointed out by Mr Oluoch, counsel for the respondent, the applications were all incompetent. Under Article 22(3) of the Constitution, the Chief Justice is empowered to make rules for enforcing the Bill of Rights. Under the rules promulgated by the Chief Justice, theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013,an application for enforcement of fundamental rights and freedoms is commenced by filing a petition or any other informal documentation. It is not necessary for the petitioner underArticle 50(6)to file an application for leave to adduce new and compelling.  The right to petition the High Court for relief where there is new and compelling evidence is a free standing right which is enforceable by filing a petition directly. The petition should set out the new and compelling evidence that the petitioner proposes to adduce in order to convince the court to grant relief.

The procedural lapses were compounded by the fact that counsel for the applicant failed to comply with the court’s directions to file the petition to regularise his position in the matter.  I therefore fixed the matter for judgment on the basis that there was sufficient material to determine the matter as original court records were before the court and it was clear that the application was made under Article 50(6) of the Constitution.

Despite the serious procedural lapses I have alluded to I have decided to invoke the provision of Article 159(2)(d) of the Constitution which empowers the court to determine matters before it without undue regard to technicalities.  I have taken this position for three reasons.  First, the applicant is a convict and he may not have been aware of the procedures when he commenced the proceedings. Second, the matter before the Court is one for enforcement of fundamental rights and freedoms under the Constitution. Third, the issue for determination is straightforward and it is whether there is new and compelling evidence entitling the applicant to a new trial.

The history of this application is a matter of public record. The applicant was charged in Homa Bay Senior Resident Magistrate’s Court Criminal Case No. 1448 of 2006 for the offence of robbery with violence contrary to section 296(2) of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the offence were that on 13th November 2006 at about 11. 00pm at Kalanya Konyango Sub-Location in West Kanyada Location of Homa Bay District, jointly with others not before the court he robbed Silas Owuor Oyugi of cash Kshs. 16,000/-, on bag containing assorted clothes, 4 blankets, an identification card, 3 jungle jackets, 3 berets fitted with a crown, 1 coat, Form 4 original certificates, 5 garment materials and 3 bar soaps all valued at Kshs. 50,000. 00 and at or immediately after the time of such robbery wounded or beat or struck the said Silas Owuor Oyugi.

After a full trial, the applicant was convicted and sentenced to death on 14th September 2007. He lodged an appeal to the High Court; Kisii Criminal Appeal No. 145 of 2007. It was heard and dismissed on 10th December 2009 by Musinga and Muchelule, JJ. He thereafter lodged the final appeal in the Court of Appeal being Kisumu Criminal Appeal No. 173 of 2010.  On 4th October 2013, the appeal was dismissed by Onyango Otieno, Azangalala and Ole Kantai, JJA.

From the procedural history I have set out above, the applicant has satisfied the first condition under Article 50(6) of the Constitution in that his appeal to the highest court at the time was heard and dismissed. This dispute therefore relates to the second limb of the provision.

After judgment had been reserved, the petitioner’s advocate filed written submissions and an affidavit of SILAS OWUORI OYUGI, who was the complainant at the original trial, sworn on 20th September 2014 for consideration. The step taken by the applicant was unprocedural as the affidavit ought to have been filed and served before judgment to give the State an opportunity to respond.  However, for the reasons I have stated in paragraph 5 above, I will consider it in deciding whether or not grant the petition in the interests of justice.

As the contents of the affidavit form the basis of the applicant’s case, I will set out its contents verbatim and they are as follows;

I SILAS OWUORI OYUGIof  … Rodi Kopany …. Kalanya Sub Location, Kanyada East Location Asego Division, Homa Bay District within the Republic of  Kenya do  hereby  make  oath and states as follows:

THATI am an adult male aged 58 years (fifty eight years)  of  sound  mind and disposition hence competent  to  make  and  swear this  affidavit.

THATI hail from the  above mentioned  locality save that, I currently  reside  at  Ojunge village  within  Kalanya Kanyango Location.

THATI am the ASSISTANT CHIEF OF KALANYA KANYANGO SUB LOCATION currently.

THATI am aware of a decided case that  had  been heard  and  determined  at  Homa Bay Senior Resident Magistrate’s  Court (SRM’S) Criminal  Case No.1448/2006 Republic  VS. Kennedy Ochieng Olunga.

THATin the above case I was the complainant  in  the  thirteenth  day of November  2006 (13/11/2006) at around  eleven  pm  in  the  afore stated  locality I was robbed of  my  personal  items  by  assailants.

THATon the material night the said  assailants  robed me of  Kshs.16,000, a bag containing  a sorted clothes, four blankets, ID Card, three jungle jackets, three berets fitted with  crown, one Court, three bar soaps,  five garment  materials,  form  four  original  Certificate.

THATI did state before the honourable Court by then,  that  at  the  time  of  robbery  it  was  actually  dark  and  the  only  form  of  lighting  was  only  by  use  of  a lantern.

THATI further stated that  the  people  who  committed  the  offence  were  over  three  in  number  or  even  they  could  have been six in number a fact which I could not readily ascertain since  at the  time of the  said  robbery  I  had  been sick ling and even at the said robbery  the  assailants  had use  force by actually  hitting  me  necessitating  me  to  lose consciousness and making me confused.

THATI implicated  the  said  Kennedy  Ochieng Olunga to  have  been  one  of  the  said robbers although I actually  had  not  seen him inside my house on  that  material  date but  was basing  my  evidence  on  what  I  was  presumably  told  by  my  family members, even  my  evidence is a testimony to the same as per the lower Courts records and proceedings.

THATI further wish to state that, based on the Court findings  and  judgment  which  was delivered  on  14/09/2007 by Honourable  E.K. Mwaita  - AG. SRM  as  then  was,  nowhere it is indicated that  actually  the  said  Kennedy Ochieng Olunga Participated  in  assaulting  me  nor  carrying  out  any  of  my  household items which I can readily pin-point to link  him  to  said  offence which  he  was  later  on sentenced  to  death  by  hanging  by  the  said  Court.

THATI further wish to affirm that the said Kennedy Ochieng Olunga is a victim of implication for an offence that has  gotten  him  due to  circumstances.

THATI wish to state further that  by  now  I  have gotten back most of  my  stolen  items  consequently  as  a result  I  have  no  claim  against  the  said  Kennedy  Ochieng Olunga.

THATI wish  to  put  it  categorically  that  I  have  not  been  induced, bribed, promised  and  monetary  gain by any of  the  family members  nor  the said Kennedy  Ochieng Olunga  to  come  up  with  these  new  revelation as concerning  his  case  before  Honourable Court.

THATin the interest of Justice and to clear my consciousness, I wish to bring the Court’s attention that I have nothing to the said Kennedy Ochieng Olunga to warrant  his  continued  stay  behind  bars.

THATconsequently I make this declaration knowingly and conscientiously  and in accordance  with oaths  and  statutory  declarations  acts.

THATall  the  facts  deponed  to  above  herein  are  true  to  the  best  of  knowledge, information and  belief.

In the written submissions, Mr Ongoso, learned counsel for the applicant, argues that the contents of the affidavit constitute new and compelling evidence which was not before the subordinate court. He contended that the complainant admitted that he did not see the applicant or implicate him in the robbery and that most of the stolen things were recovered while the appellant was in prison.

Counsel cited the case of Hassan Mohammed Namwiba v Republic KKA Petition No. 12 of 2014 [2014]eKLR where Chitembwe J., allowed an a petition under Article 50(6) of the Constitution on the ground that the complainant deposed that the motorbike which had been allegedly stolen by the petitioner was found and returned to the owner.   The learned judge went further and directed an acquittal on the ground that the complainant had no claim against the applicant.

A person who has been convicted and has exhausted all the appeals has the right, under Article 50(6) of the Constitution to seek a fresh trial by demonstrating that there is new and compelling evidence. This provision has been the subject of several decisions of the High Court among them; Ramadhan Juma Abdalla and 3 Others v RNairobi Petition No. 468 of 2012[2013]eKLR, Wilson Thirimba Mwangi v Director of Public Prosecutions,Nairobi Petition No. 271 of 2011, [2012]eKLR, Mohamed Adbulrahman Said and Another v Republic Mombasa Criminal Misc. Appl. Nos. 66A and 66B of 2011 (Unreported). The authorities demonstrate that in order for a petition under Article 50(6) of the Constitution to succeed, the petitioner must adduce new evidence in the sense that it must not have been available to the petitioner during the trial.  It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial or was not available at the time of the hearing of the two appeals. Secondly, the evidence must be compelling meaning that it must be admissible, credible and not merely corroborative, cumulative, collateral or impeaching. It must be such that if it is considered in light of all the evidence, it must be such as to be favourable to the petitioner to the extent that it may possibly persuade a court to law to reach an entirely different decision than that already reached.

Counsel for the applicant rightly pointed out that the court should consider the deposition of Silas Owuor Oyugi and consider whether it met the test of new and compelling evidence. In order to do so, it is necessary to recount the substance of the evidence that led to the applicant’s conviction.

The prosecution marshalled 6 witnesses to prove its case. Silas Owuor Oyugi (PW 1) stated that on  the  material day  in evening he  was at  home  in  bed  because  he  was  unwell.  At about  11. 00 p.m he  heard voices  outside  the  house  of  people  who  asked  his  wife  to open the door.  The  people outside  the  house called  his  wife  by  a nickname “Nyakaboko” by which she  was known and they told  her that  they  wanted to see Silas who  was the area Chief.  When Nyakaboko peered outside, the three people forced the door open and burst into the house. They entered his  bedroom  where  they  stated that  they  were on a mission to kill him, for  which  they  had  been paid  Kshs.100,000/- but could  spare him if he doubled this sum. As PW 1 did not have that kind of money, he therefore told them they were free to accomplish their mission.  This did not go down well with the raiders who demanded his official uniform which they took alongside Kshs 16,000/- which were proceeds from sale of cows and the other items particularized in the charge sheet. In the course of the robbery they were  beating  PW 1  as  they  demanded  the money

In the midst of this drama PW 1’s daughter PW 2 ran out of the house but was pursued by one of the raiders who caught up with her. He lit a torch and shone it on PW 2 who recognized her pursuer as Omboga son of Jacobo whom she knew. Omboga was the applicant’s nickname.   She  pleaded  with  him  asking, “why are you killing  me  and  already  you  have  killed  my  father.” She stated this believing that her father had been killed. This plea was heard by PW 1 and the other occupants of the house who testified in Court. When Omboga son of Jacobo caught up with PW 2 and as he took her back to the house the other raiders flashed torches and PW 2 was further able to recognize her pursuer. PW 1’s wife PW5 cried out for help and stated that she had recognized two attackers including PW 1 when she reported the matter at Homa Bay Police Station where investigations commenced.

Four days after the incident PW 1 met the applicant who was called by a nickname Omboga.  He had him arrested. PW 2 testified under oath confirmed PW 1’s narration of the facts adding that she knew some of the attackers and that it was the applicant who chased after her and took her back to the house. PW 3, another child, narrated the same facts. She stated that she not only knew the applicant who was from the same locality as herself but knew his sister who was her school mate. PW 5 also described the attack in detail and she stated that she knew two of attackers including the appellant who was from the same locality as herself.

The applicant contends that Silas Oyugi has now stated that he did not identify him. In my view based upon the three judgments of the courts that heard the matter, the conviction of the appellant was founded on recognition by witnesses PW 2, PW 3 and PW 5.  The first appellate court was satisfied that the applicant was properly identified and affirmed the conviction.  The Court of Appeal, as the second appellate court, also found sufficient evidence to implicate the applicant in the offence. During the trial, the applicant had the opportunity to interrogate the testimony of Silas Oyugi.

The issue of identification was exhaustively dealt with by the three courts and the deposition of Silas Oyugi does not raise any new evidence on the issue of identification particularly given that in the initial trial, Silas Oyugi neither recognised nor identified the applicant as his assailant.

The second piece of new and compelling evidence presented by the applicant is the fact that the Silas Oyugi states that he had recovered most of the items stolen from him and as result he has no claim against the applicant. The offence of robbery with violence is defined by the Penal Code. The central element is the proof of theft committed under the circumstances set out in section 296 (2) of the Penal Code. Theingredients of the offence of robbery with violence that need to be established are as follows; The offender is armed with any dangerous or offensive weapon or instrument or the offender is in company with one or more other person or persons or at or immediately before or immediately after the time of the robbery, the offender wounds, beats, strikes or uses other personal violence to any person.

The fact that the items were returned or recovered is irrelevant to the definition of the offence of robbery with violence as is the fact that the complainant had no claim against the applicant. The question for the court is that at the time of the offence were the items stated in the charge stolen in circumstances that amount to robbery?  The question is answered by Silas Oyugi himself who clearly states that his things were stolen on the material night. That fact has not changed! The prosecution proved that the intent to steal in the course of using violence and that the applicant was one of the people identified and recognised.

Nothing new let alone compelling has been placed before the court. In light of the clear provisions of Article 50(6) of the Constitution, the applicant’s case cannot succeed.

The result of my findings is that the applicant has not made out a case under Article 50(6) of the Constitution.

DATEDandDELIVEREDatHOMA BAYthis 16th day of December 2014

D.S. MAJANJA

JUDGE

Mr Ongoso instructed by Ongoso and Company Advocates for the applicant.

Mr Oluoch, Senior Assistant Director of Public Prosecutions, instructed by the Office of the Director of Public Prosecutions for the respondent.