REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL REVISION NO. E004 OF 2026
IN THE MATTER OF ARTICLES 2, 3(a), 19(2), 20(1), 22(1), 23(1), 25(c),
26(1), 27(1) (4), 28, 50(2)(p)(q), 159(2) AND 165(3) OF THE CONSTITUTION
OF KENYA
AND
IN THE MATTER OF CONSTITUTION OF KENYA (Protection of Rights and
Fundamental Freedoms) PRACTICE AND PROCEDURE RULES 2010
AND
IN THE MATTER OF SECTION 295 AS READ WITH SECTION 296 (2) OF
THE PENAL CODE
CHARLES AMBOKO………………………………………………….……..APPLICANT
VERSUS
REPUBLIC…………………………………………………………………..RESPONDENT
Coram:
Before Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
RULING
1. Before this court is a notice of motion by the Applicant, dated on 19th March
2026, seeking the following orders:
a. I was charged and convicted for an offence of robbery with violence contrary
to section 295 as read with section 296 (2) of the penal code and in count
two for gang rape contrary to section 10 of the SOA No 3 of 2006 in criminal
case number 539 of 2014 at CM'S court Vihiga and sentenced to death and
3
years imprisonment respectively, the sentences termed to run
concurrently.
b. THAT, I appealed to the high court at Kakamega vide HCCRA. NO.55 of 2016
and my appeal only merited in the quashing of death sentence in robbery
with violence and substitute it with 35 years jail term and enhanced the 3
years term in Gang rape tol5years.
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Criminal Case No. E004 of 2026
c. THAT, I later appealed to the 2nd appellate court at KISUMU vide C.O.A
NO.178 OF2019 whereby the same was dismissed on 22.11.2024
2. Which application is made in the following grounds;
a. THAT, my first appeal in HCCRA NO. 55 OF 2016 at Kakamega High Court
partially merited in the sense that the sentence of DEATH in count I in the
offence of Robbery with violence contrary to Section 296(2) of the penal code
was substituted to 35years though the original sentence was said to run
concurrently.
b. THAT, I filed an appeal to the court of Appeal at Kisumu vide C.O.A NO.178
of 2019 whereby the two sentences in robbery with violence and gang rape
was dismissed on22.11.2024 by the three judge bench.
c. THAT, the High Court has competent jurisdiction to hear and determine this
application under Article 165(3) (b) of the Constitution of Kenya 2010
d. THAT, under the constitution of KENYA under Article 50 (2) (p) (q) an
Applicant has a right to benefit from the least severe sentence and have his
sentence reviewed
e. That the applicant approaches this Hon. Court seeking for re-hearing basing
mitigations and for re-sentencing.
f. That the applicant herein is a first offender, remorseful and was arrested
while in his teenage. He had no family of his own.
g. While in custody, he has undergone reformation and rehabilitative programs
and now ready to be re-integrated back to his vulnerable parents- to better
their livelihood
h. That the applicant has served a whooping II years since his arrest thus prays
with humility that the Hon. Court consider him reformed and substitute the
35 years sentence with the least or non-custodial sentence or order for release
whichever order the court may deem fit.
i. THAT, a sentence of 35 years’ imprisonment contravenes section 216 and 389
of the Criminal Procedure Codes on mitigation and the values of sentencing
as in the Sentence Policy Guidelines 2016 Paragraph 4;
j. THAT, under the provisions of the Constitution of Kenya 2010 and Practice
Page 2 of 11
Criminal Case No. E004 of 2026
and Procedure Rules 2010 this Court has power to hear and determine
infringements off unfundamental rights and award remedy.
3. From the facts of this case the Applicant seeks a revisit of jurisdiction on
sentence review based on Articles 2, 3(a), 19(2), 20(1), 22(1), 23(1), 25(c),
26(1), 27(1) (4), 28, 50(2)(p)(q), 159(2) and 165(3) of the Constitution of Kenya.
4. The above Articles in which the application is premised provide briefly as
follows:
2(1) This Constitution is the supreme law of the Republic and binds all
persons and all State organs at both levels of government.
(2) No person may claim or exercise State authority except as authorised
under this Constitution.
(3) The validity or legality of this Constitution is not subject to challenge by
or before any court or other State organ.
(4) Any law, including customary law, that is inconsistent with this
Constitution is void to the extent of the inconsistency, and any act or
omission in contravention of this Constitution is invalid.
(5) The general rules of international law shall form part of the law of
Kenya.
(6) Any treaty or convention ratified by Kenya shall form part of the law of
Kenya under this Constitution.
3. (1) Every person has an obligation to respect, uphold and defend this
Constitution.
19(2) The purpose of recognising and protecting human rights and
fundamental freedoms is to preserve the dignity of individuals and
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Criminal Case No. E004 of 2026
communities and to promote social justice and the realisation of the
potential of all human beings.
20. (1) The Bill of Rights applies to all law and binds all State organs and
all persons.
22. (1) Every person has the right to institute court proceedings claiming
that a right or fundamental freedom in the Bill of Rights has been denied,
violated or infringed, or is threatened.
23. (1) The High Court has jurisdiction, in accordance with Article 165, to
hear and determine applications for redress of a denial, violation or
infringement of, or threat to, a right or fundamental freedom in the Bill of
Rights.
25(c) the right to a fair trial;
26. (1) Every person has the right to life.
27. (1) Every person is equal before the law and has the right to equal
protection and equal benefit of the law.
(4) The State shall not discriminate directly or indirectly against any person
on any ground, including race, sex, pregnancy, marital status, health status,
ethnic or social origin, colour, age, disability, religion, conscience, belief,
culture, dress, language or birth.
28. Every person has inherent dignity and the right to have that dignity
respected and protected.
50. (2) Every accused person has the right to a fair trial, which includes
the right—
Page 4 of 11
Criminal Case No. E004 of 2026
(p) to the benefit of the least severe of the prescribed punishments for an
offence, if the prescribed punishment for the offence has been changed
between the time that the offence was committed and the time of
sentencing; and
(q) if convicted, to appeal to, or apply for review by, a higher court as
prescribed by law.
159. (2) In exercising judicial authority, the courts and tribunals shall be
guided by the following principles— (a) justice shall be done to all,
irrespective of status; (b) justice shall not be delayed; (c) alternative forms of
dispute resolution including reconciliation, mediation, arbitration and
traditional dispute resolution mechanisms shall be promoted, subject to
clause (3); (d) justice shall be administered without undue regard to
procedural technicalities; and (e) the purpose and principles of this
Constitution shall be protected and promoted. (3) Traditional dispute
resolution mechanisms shall not be used in a way that— (a) contravenes the
Bill of Rights; (b) is repugnant to justice and morality or results in outcomes
that are repugnant to justice or morality; or (c) is inconsistent with this
Constitution or any written law.
(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
Page 5 of 11
Criminal Case No. E004 of 2026
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; (e) any other
jurisdiction, original or appellate, conferred on it by legislation.
5. The interpretation of the Constitution is provided for under Article 259
drawing from the foundational Article 2 and 10 which briefly provides as
follows; that the Constitution binds everyone who has to apply and interpret
it or any other law, or makes public policy, to the national values spelt out
therein including: human dignity, equity, social justice, inclusiveness,
equality, human rights, transparency and accountability. It opens up further
space for application of other principles and values obtaining in the general
rules of international law and the international instruments Kenya has
ratified, such as, the Universal Declaration on Human Rights, the
International Covenant on Civil and Political Rights (ICCPR), and the
International Covenant on Economic, Social and Political Rights (ICESCR).
6. In Articles 20(3) and (4), it gives an edict to the Courts as they apply the Bill
of Rights to develop the law where it does not give effect to a right; adopt the
interpretation that most favors the enforcement of a right or fundamental
freedom; and promote the values that underlie an open and democratic
society based on human dignity, equality, equity, freedom and the spirit,
purport and objects of the Bill of rights.
7. There is also Article 259 which commands the manner in which the
Constitution should be interpreted; that is. ‘a manner that promotes its
purposes, values and principles; advances the rule of law, and human rights
and fundamental freedoms in the Bill of Rights; permits the development of
the law and contributes to good governance’. It also demands that every
provision of the Constitution ‘shall be construed according to the doctrine of
interpretation that the law is always speaking’.
Page 6 of 11
Criminal Case No. E004 of 2026
8. What the above provisions denote is the Constitution must be read as a living
political document rather than a rigid purely textual rule book. The
jurisprudence in Kenya has cemented a liberal and purposive approach to
interpreting fundamental human rights provisions and supremacy of the
Constitution (See Stanley Mombo Amuti and Kenya Anti-Corruption
Commission Petition No. 21 of 2019, Joseph Ombogi Egentoto and Martha
Egentoto & 2 Others Petition No. 11 of 2020. In the matter of the Principle of
Gender Representation in the National Assembly and the Senate [2012], in the
Communications Commission of Kenya [CCK] & 5 Others v Royal Media
Services Limited & 5 Others [2014], Raila Odinga & 2 Others v Independent
Electoral and Boundaries Commission [IEBC] & 3 Others [2013 & 2017
Presidential Election Petitions) & Mitu-Bell Welfare Society v Attorney General
& 2 Others [2021].
9. The gist of the current application before this Court is on review of sentence
which subject matter has been litigated before Kakamega High Court vide
HCCRA NO. 55 of 2016 and thereafter before the Kenya Court of Appeal by
dint of Case No. 178 of 2019. According to the Applicant he has now
approached this Court seeking for a rehearing based on mitigations and
resentencing process. Therefore, his application can be litigated under Article
50(6) (a) & (b) of the Constitution. What is the expectation of the law under
this Article in so far as convicted persons are concerned? The law allows them
leave to petition the High Court for a new trial if their highest permissible
appeal was dismissed and new compelling evidence has become available.
The legal framework of these provisions under our Constitution requires that
the Petitioners initial appeal has either been dismissed by the highest Court
entitled to hear it or the statutory term limit to file an appeal has lapsed. The
other important ingredient under this Article is that it requires the Petitioner
to present new and compelling evidence that was previously unavailable
during the trial or initial appeal.
10. The threshold as outlined in the case of Tom Martins Kibisu v Republic
[2022] eKLR is that the new evidence that was unavailable during the initial
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Criminal Case No. E004 of 2026
trial and could not have been presented even if reasonable diligence had been
exercised. Towards that end, the law envisages compelling evidence to be of
high probative value and credibility that would have been admissible in the
trial and would probably have led to a different verdict had it been presented
by the Applicant. Similarly, in the case of Philip Mueke Maingi & 2 Others
v Republic [2022] eKLR the Court explained itself on the first limb of the
article as follows:
“40. In so far as the first limb is concerned, the Article talks about the highest
court to which the person is entitled to appeal as opposed to the highest
appellate court in the land.”
What this means is this; in a scenario where the trial Court was the
Magistrate’s Court, the highest Court which a convict is entitled to appeal
on matters of fact is the High Court. This is because Section 361 (1) of the
Criminal Procedure Code bars a party from lodging a further appeal from
the High Court to the Court of Appeal on matters of fact and limits such
further appeal to matters of law only.
A person whose challenge to the conviction is based on matters of fact need
not have prosecuted a further appeal at the Court of Appeal before being
able to petition the High Court under Article 50(6) for re-trial, as he would
have exhausted his course of appeal at the High Court.
11. It was also the decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh
Rai & 4 Others Supreme Court Petition No. 4 of 2012; [2014] eKLR in
which the Court established the foundational principles applied to additional
evidence, requiring that such evidence is directly relevant, credible and
capable of influencing the verdict.
12. The doctrine of new compelling evidence as provided for under Article 50(6)
(a) & (b) of the Constitution allows the High Court to order a retrial if convicted
person discovers material evidence that was previously unavailable. The
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Criminal Case No. E004 of 2026
expectation of the law on the part of the Applicant is to establish and
demonstrate that on matters of sentence review there was unavailability of a
piece or pieces of evidence during the initial trial and could not have been
discovered or obtained by him or her despite the exercise of due diligence.
The other legitimate expectation on the part of the Applicant is that the kind
of evidence now available ought to be admitted for the interest of justice for it
is directly relevant to the core issues of the case on sentence and will serve
the overreaching interest of justice in the matter. His affidavit therefore must
show the nature and character of the new evidence to persuade this Court to
order for a retrial. Secondly, there must be probative and cogent evidence
that it was impossible to present it during the original trial and the same if
allowed it will alter the verdict on sentence.
13. I have taken time to examine the motion and correspondent affidavit. There
is absolutely no evidence which comes within the scope of Article 50(6) (a) &
(b) of the Constitution.
The only thing available in the affidavit is
fundamentally on issues of the sentence being punitive and all excessive and
the retrial is for an order of non-custodial sentence. This application has
been brought before me for retrial after the decisions by both the High Court
and the Court of Appeal have heard and been determined the appeals on merit
on both conviction and sentence.
14. There is an expectation imposed the accused persons or other litigating
parties to place the whole of their case before the various forums of
adjudication at the time of the initial hearing, at the level of Appeal’s Court
including the Court of Appeal of Kenya. Therefore, reopening a proceedings
under Article 50(6) (a) & (b) to introduce new or further evidence whether done
before or after a decision has been issued in a matter is thus an extra ordinary
step and one that the importance of finality and quick resolution of either civil
disputes or criminal trials militates against taking a decision for a retrial
unless exceptional circumstances are present and established by the
Applicant under Section 107(1), 108, 109 and 112 of the Evidence Act.
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Criminal Case No. E004 of 2026
15. This is the position taken by the persuasive decision in Oakley v Royal Bank
of Canada, 2013 ONSC 145, [2013] OJ No. 109 (SC):
“10 The Court requires the parties to litigation to bring forward their
whole case. … In both civil and criminal matters, the Crown or plaintiff
must produce and enter in its own case all clearly relevant evidence
it has. …
11 On the other hand, a trial Judge has the discretion to permit a
Plaintiff to re-open its case. This discretion however, must be
exercised judicially. It must involve a scrupulous balancing of the
accountability of counsel for decisions regarding the prosecution of its
case and the interests of justice. …” (QL at para. 10-11).
16. In addition, the Canadian Encyclopedic Digest - Evidence, IV 12(a),
summarized the typical judicial approaches employed in applications to re
open proceedings I the following passage:
“Where a party wishes to adduce evidence at a late stage that does
not fall within the definition of rebuttal testimony, it must seek to re
open its case. The jurisprudence has not always been consistent in
establishing what is required for the granting of leave to adduce new
evidence and the matter is complicated by the fact that attempts to re
open can occur after the parties have closed their case, but before
judgment has been delivered; after judgment has been delivered but
before that judgment has been entered; and after judgment has been
entered. While some judges have advocated an unfettered approach
to the trial judge’s discretion, whereby re-opening is permissible any
time it is in the interests of justice to do so, the more common method
of proceeding is to focus on two criteria: (1) whether the evidence - if
it had been properly tendered - would probably have altered the
judgment; and (2) whether the evidence could have been discovered
sooner had the party applied reasonable diligence. Re-opening the
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Criminal Case No. E004 of 2026
case is an extreme measure, and should only be allowed sparingly
and with the greatest of care.
While the two criteria must both be considered, the need to have
exercised reasonable diligence in discovering the evidence is not
absolute. The more important the evidence would be to the outcome of
the case, the stronger the argument in favour of its reception.
Procedural concerns such as diligence should generally give way to
the demands of substantial justice where failure to do so is likely to
result in an obvious injustice. Nonetheless, re-opening is unlikely to
be permitted where the evidence was discovered and not adduced
originally because of a tactical decision by counsel.
In deciding whether to re-open, the court should also consider the
complexity of the evidence and the possibility that the opposing party
will need to call evidence in reply. Judges will be hesitant to re-open
where it would essentially amount to a second trial. In contrast,
where the evidence to be submitted is uncomplicated or undisputed,
admission is more likely. (Carswell, at para. 266-268)”.
17. Based on the above principles and as applied to the facts of this case I find
no merit to grant the remedies on retrial revolving around the subject matter
on sentence imposed by the trial Court as thereafter revisited by the Appeal’s
Court. The application is dismissed for want of merit. It is so ordered.
DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026.
.......................................
R. NYAKUNDI
JUDGE
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Criminal Case No. E004 of 2026
IN THE HIGH COURT AT VIHIGA
CRIMINAL REVISION NO. E004 OF 2026
IN THE MATTER OF ARTICLES 2, 3(a), 19(2), 20(1), 22(1), 23(1), 25(c),
26(1), 27(1) (4), 28, 50(2)(p)(q), 159(2) AND 165(3) OF THE CONSTITUTION
OF KENYA
AND
IN THE MATTER OF CONSTITUTION OF KENYA (Protection of Rights and
Fundamental Freedoms) PRACTICE AND PROCEDURE RULES 2010
AND
IN THE MATTER OF SECTION 295 AS READ WITH SECTION 296 (2) OF
THE PENAL CODE
CHARLES AMBOKO………………………………………………….……..APPLICANT
VERSUS
REPUBLIC…………………………………………………………………..RESPONDENT
Coram:
Before Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
RULING
1. Before this court is a notice of motion by the Applicant, dated on 19th March
2026, seeking the following orders:
a. I was charged and convicted for an offence of robbery with violence contrary
to section 295 as read with section 296 (2) of the penal code and in count
two for gang rape contrary to section 10 of the SOA No 3 of 2006 in criminal
case number 539 of 2014 at CM'S court Vihiga and sentenced to death and
3
years imprisonment respectively, the sentences termed to run
concurrently.
b. THAT, I appealed to the high court at Kakamega vide HCCRA. NO.55 of 2016
and my appeal only merited in the quashing of death sentence in robbery
with violence and substitute it with 35 years jail term and enhanced the 3
years term in Gang rape tol5years.
Page 1 of 11
Criminal Case No. E004 of 2026
c. THAT, I later appealed to the 2nd appellate court at KISUMU vide C.O.A
NO.178 OF2019 whereby the same was dismissed on 22.11.2024
2. Which application is made in the following grounds;
a. THAT, my first appeal in HCCRA NO. 55 OF 2016 at Kakamega High Court
partially merited in the sense that the sentence of DEATH in count I in the
offence of Robbery with violence contrary to Section 296(2) of the penal code
was substituted to 35years though the original sentence was said to run
concurrently.
b. THAT, I filed an appeal to the court of Appeal at Kisumu vide C.O.A NO.178
of 2019 whereby the two sentences in robbery with violence and gang rape
was dismissed on22.11.2024 by the three judge bench.
c. THAT, the High Court has competent jurisdiction to hear and determine this
application under Article 165(3) (b) of the Constitution of Kenya 2010
d. THAT, under the constitution of KENYA under Article 50 (2) (p) (q) an
Applicant has a right to benefit from the least severe sentence and have his
sentence reviewed
e. That the applicant approaches this Hon. Court seeking for re-hearing basing
mitigations and for re-sentencing.
f. That the applicant herein is a first offender, remorseful and was arrested
while in his teenage. He had no family of his own.
g. While in custody, he has undergone reformation and rehabilitative programs
and now ready to be re-integrated back to his vulnerable parents- to better
their livelihood
h. That the applicant has served a whooping II years since his arrest thus prays
with humility that the Hon. Court consider him reformed and substitute the
35 years sentence with the least or non-custodial sentence or order for release
whichever order the court may deem fit.
i. THAT, a sentence of 35 years’ imprisonment contravenes section 216 and 389
of the Criminal Procedure Codes on mitigation and the values of sentencing
as in the Sentence Policy Guidelines 2016 Paragraph 4;
j. THAT, under the provisions of the Constitution of Kenya 2010 and Practice
Page 2 of 11
Criminal Case No. E004 of 2026
and Procedure Rules 2010 this Court has power to hear and determine
infringements off unfundamental rights and award remedy.
3. From the facts of this case the Applicant seeks a revisit of jurisdiction on
sentence review based on Articles 2, 3(a), 19(2), 20(1), 22(1), 23(1), 25(c),
26(1), 27(1) (4), 28, 50(2)(p)(q), 159(2) and 165(3) of the Constitution of Kenya.
4. The above Articles in which the application is premised provide briefly as
follows:
2(1) This Constitution is the supreme law of the Republic and binds all
persons and all State organs at both levels of government.
(2) No person may claim or exercise State authority except as authorised
under this Constitution.
(3) The validity or legality of this Constitution is not subject to challenge by
or before any court or other State organ.
(4) Any law, including customary law, that is inconsistent with this
Constitution is void to the extent of the inconsistency, and any act or
omission in contravention of this Constitution is invalid.
(5) The general rules of international law shall form part of the law of
Kenya.
(6) Any treaty or convention ratified by Kenya shall form part of the law of
Kenya under this Constitution.
3. (1) Every person has an obligation to respect, uphold and defend this
Constitution.
19(2) The purpose of recognising and protecting human rights and
fundamental freedoms is to preserve the dignity of individuals and
Page 3 of 11
Criminal Case No. E004 of 2026
communities and to promote social justice and the realisation of the
potential of all human beings.
20. (1) The Bill of Rights applies to all law and binds all State organs and
all persons.
22. (1) Every person has the right to institute court proceedings claiming
that a right or fundamental freedom in the Bill of Rights has been denied,
violated or infringed, or is threatened.
23. (1) The High Court has jurisdiction, in accordance with Article 165, to
hear and determine applications for redress of a denial, violation or
infringement of, or threat to, a right or fundamental freedom in the Bill of
Rights.
25(c) the right to a fair trial;
26. (1) Every person has the right to life.
27. (1) Every person is equal before the law and has the right to equal
protection and equal benefit of the law.
(4) The State shall not discriminate directly or indirectly against any person
on any ground, including race, sex, pregnancy, marital status, health status,
ethnic or social origin, colour, age, disability, religion, conscience, belief,
culture, dress, language or birth.
28. Every person has inherent dignity and the right to have that dignity
respected and protected.
50. (2) Every accused person has the right to a fair trial, which includes
the right—
Page 4 of 11
Criminal Case No. E004 of 2026
(p) to the benefit of the least severe of the prescribed punishments for an
offence, if the prescribed punishment for the offence has been changed
between the time that the offence was committed and the time of
sentencing; and
(q) if convicted, to appeal to, or apply for review by, a higher court as
prescribed by law.
159. (2) In exercising judicial authority, the courts and tribunals shall be
guided by the following principles— (a) justice shall be done to all,
irrespective of status; (b) justice shall not be delayed; (c) alternative forms of
dispute resolution including reconciliation, mediation, arbitration and
traditional dispute resolution mechanisms shall be promoted, subject to
clause (3); (d) justice shall be administered without undue regard to
procedural technicalities; and (e) the purpose and principles of this
Constitution shall be protected and promoted. (3) Traditional dispute
resolution mechanisms shall not be used in a way that— (a) contravenes the
Bill of Rights; (b) is repugnant to justice and morality or results in outcomes
that are repugnant to justice or morality; or (c) is inconsistent with this
Constitution or any written law.
(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
Page 5 of 11
Criminal Case No. E004 of 2026
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; (e) any other
jurisdiction, original or appellate, conferred on it by legislation.
5. The interpretation of the Constitution is provided for under Article 259
drawing from the foundational Article 2 and 10 which briefly provides as
follows; that the Constitution binds everyone who has to apply and interpret
it or any other law, or makes public policy, to the national values spelt out
therein including: human dignity, equity, social justice, inclusiveness,
equality, human rights, transparency and accountability. It opens up further
space for application of other principles and values obtaining in the general
rules of international law and the international instruments Kenya has
ratified, such as, the Universal Declaration on Human Rights, the
International Covenant on Civil and Political Rights (ICCPR), and the
International Covenant on Economic, Social and Political Rights (ICESCR).
6. In Articles 20(3) and (4), it gives an edict to the Courts as they apply the Bill
of Rights to develop the law where it does not give effect to a right; adopt the
interpretation that most favors the enforcement of a right or fundamental
freedom; and promote the values that underlie an open and democratic
society based on human dignity, equality, equity, freedom and the spirit,
purport and objects of the Bill of rights.
7. There is also Article 259 which commands the manner in which the
Constitution should be interpreted; that is. ‘a manner that promotes its
purposes, values and principles; advances the rule of law, and human rights
and fundamental freedoms in the Bill of Rights; permits the development of
the law and contributes to good governance’. It also demands that every
provision of the Constitution ‘shall be construed according to the doctrine of
interpretation that the law is always speaking’.
Page 6 of 11
Criminal Case No. E004 of 2026
8. What the above provisions denote is the Constitution must be read as a living
political document rather than a rigid purely textual rule book. The
jurisprudence in Kenya has cemented a liberal and purposive approach to
interpreting fundamental human rights provisions and supremacy of the
Constitution (See Stanley Mombo Amuti and Kenya Anti-Corruption
Commission Petition No. 21 of 2019, Joseph Ombogi Egentoto and Martha
Egentoto & 2 Others Petition No. 11 of 2020. In the matter of the Principle of
Gender Representation in the National Assembly and the Senate [2012], in the
Communications Commission of Kenya [CCK] & 5 Others v Royal Media
Services Limited & 5 Others [2014], Raila Odinga & 2 Others v Independent
Electoral and Boundaries Commission [IEBC] & 3 Others [2013 & 2017
Presidential Election Petitions) & Mitu-Bell Welfare Society v Attorney General
& 2 Others [2021].
9. The gist of the current application before this Court is on review of sentence
which subject matter has been litigated before Kakamega High Court vide
HCCRA NO. 55 of 2016 and thereafter before the Kenya Court of Appeal by
dint of Case No. 178 of 2019. According to the Applicant he has now
approached this Court seeking for a rehearing based on mitigations and
resentencing process. Therefore, his application can be litigated under Article
50(6) (a) & (b) of the Constitution. What is the expectation of the law under
this Article in so far as convicted persons are concerned? The law allows them
leave to petition the High Court for a new trial if their highest permissible
appeal was dismissed and new compelling evidence has become available.
The legal framework of these provisions under our Constitution requires that
the Petitioners initial appeal has either been dismissed by the highest Court
entitled to hear it or the statutory term limit to file an appeal has lapsed. The
other important ingredient under this Article is that it requires the Petitioner
to present new and compelling evidence that was previously unavailable
during the trial or initial appeal.
10. The threshold as outlined in the case of Tom Martins Kibisu v Republic
[2022] eKLR is that the new evidence that was unavailable during the initial
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trial and could not have been presented even if reasonable diligence had been
exercised. Towards that end, the law envisages compelling evidence to be of
high probative value and credibility that would have been admissible in the
trial and would probably have led to a different verdict had it been presented
by the Applicant. Similarly, in the case of Philip Mueke Maingi & 2 Others
v Republic [2022] eKLR the Court explained itself on the first limb of the
article as follows:
“40. In so far as the first limb is concerned, the Article talks about the highest
court to which the person is entitled to appeal as opposed to the highest
appellate court in the land.”
What this means is this; in a scenario where the trial Court was the
Magistrate’s Court, the highest Court which a convict is entitled to appeal
on matters of fact is the High Court. This is because Section 361 (1) of the
Criminal Procedure Code bars a party from lodging a further appeal from
the High Court to the Court of Appeal on matters of fact and limits such
further appeal to matters of law only.
A person whose challenge to the conviction is based on matters of fact need
not have prosecuted a further appeal at the Court of Appeal before being
able to petition the High Court under Article 50(6) for re-trial, as he would
have exhausted his course of appeal at the High Court.
11. It was also the decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh
Rai & 4 Others Supreme Court Petition No. 4 of 2012; [2014] eKLR in
which the Court established the foundational principles applied to additional
evidence, requiring that such evidence is directly relevant, credible and
capable of influencing the verdict.
12. The doctrine of new compelling evidence as provided for under Article 50(6)
(a) & (b) of the Constitution allows the High Court to order a retrial if convicted
person discovers material evidence that was previously unavailable. The
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expectation of the law on the part of the Applicant is to establish and
demonstrate that on matters of sentence review there was unavailability of a
piece or pieces of evidence during the initial trial and could not have been
discovered or obtained by him or her despite the exercise of due diligence.
The other legitimate expectation on the part of the Applicant is that the kind
of evidence now available ought to be admitted for the interest of justice for it
is directly relevant to the core issues of the case on sentence and will serve
the overreaching interest of justice in the matter. His affidavit therefore must
show the nature and character of the new evidence to persuade this Court to
order for a retrial. Secondly, there must be probative and cogent evidence
that it was impossible to present it during the original trial and the same if
allowed it will alter the verdict on sentence.
13. I have taken time to examine the motion and correspondent affidavit. There
is absolutely no evidence which comes within the scope of Article 50(6) (a) &
(b) of the Constitution.
The only thing available in the affidavit is
fundamentally on issues of the sentence being punitive and all excessive and
the retrial is for an order of non-custodial sentence. This application has
been brought before me for retrial after the decisions by both the High Court
and the Court of Appeal have heard and been determined the appeals on merit
on both conviction and sentence.
14. There is an expectation imposed the accused persons or other litigating
parties to place the whole of their case before the various forums of
adjudication at the time of the initial hearing, at the level of Appeal’s Court
including the Court of Appeal of Kenya. Therefore, reopening a proceedings
under Article 50(6) (a) & (b) to introduce new or further evidence whether done
before or after a decision has been issued in a matter is thus an extra ordinary
step and one that the importance of finality and quick resolution of either civil
disputes or criminal trials militates against taking a decision for a retrial
unless exceptional circumstances are present and established by the
Applicant under Section 107(1), 108, 109 and 112 of the Evidence Act.
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15. This is the position taken by the persuasive decision in Oakley v Royal Bank
of Canada, 2013 ONSC 145, [2013] OJ No. 109 (SC):
“10 The Court requires the parties to litigation to bring forward their
whole case. … In both civil and criminal matters, the Crown or plaintiff
must produce and enter in its own case all clearly relevant evidence
it has. …
11 On the other hand, a trial Judge has the discretion to permit a
Plaintiff to re-open its case. This discretion however, must be
exercised judicially. It must involve a scrupulous balancing of the
accountability of counsel for decisions regarding the prosecution of its
case and the interests of justice. …” (QL at para. 10-11).
16. In addition, the Canadian Encyclopedic Digest - Evidence, IV 12(a),
summarized the typical judicial approaches employed in applications to re
open proceedings I the following passage:
“Where a party wishes to adduce evidence at a late stage that does
not fall within the definition of rebuttal testimony, it must seek to re
open its case. The jurisprudence has not always been consistent in
establishing what is required for the granting of leave to adduce new
evidence and the matter is complicated by the fact that attempts to re
open can occur after the parties have closed their case, but before
judgment has been delivered; after judgment has been delivered but
before that judgment has been entered; and after judgment has been
entered. While some judges have advocated an unfettered approach
to the trial judge’s discretion, whereby re-opening is permissible any
time it is in the interests of justice to do so, the more common method
of proceeding is to focus on two criteria: (1) whether the evidence - if
it had been properly tendered - would probably have altered the
judgment; and (2) whether the evidence could have been discovered
sooner had the party applied reasonable diligence. Re-opening the
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case is an extreme measure, and should only be allowed sparingly
and with the greatest of care.
While the two criteria must both be considered, the need to have
exercised reasonable diligence in discovering the evidence is not
absolute. The more important the evidence would be to the outcome of
the case, the stronger the argument in favour of its reception.
Procedural concerns such as diligence should generally give way to
the demands of substantial justice where failure to do so is likely to
result in an obvious injustice. Nonetheless, re-opening is unlikely to
be permitted where the evidence was discovered and not adduced
originally because of a tactical decision by counsel.
In deciding whether to re-open, the court should also consider the
complexity of the evidence and the possibility that the opposing party
will need to call evidence in reply. Judges will be hesitant to re-open
where it would essentially amount to a second trial. In contrast,
where the evidence to be submitted is uncomplicated or undisputed,
admission is more likely. (Carswell, at para. 266-268)”.
17. Based on the above principles and as applied to the facts of this case I find
no merit to grant the remedies on retrial revolving around the subject matter
on sentence imposed by the trial Court as thereafter revisited by the Appeal’s
Court. The application is dismissed for want of merit. It is so ordered.
DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026.
.......................................
R. NYAKUNDI
JUDGE
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