Coram: Before Justice R. Nyakundi
Mr. Leina Davies for the State
RULING
1. Before this court is a Notice of Motion dated 24th December 2025 seeking the
following orders:
a. Spent.
b. May this court be pleased to reduce the applicant’s sentence to at least
severe one than the current life sentence.
c. That may this court waive any cost/fee involved and see to it that the
applicant shall be present at the hearing thereof.
2. Based on the grounds that:
a. That the appellant was not allowed to mitigate for the trial and appeal court
at that time stated that their hands had been tied by one mandatory
sentence provided by law.
b. Rehabilitation, Reformation, Social re-adoption and being profusely
remorseful.
c. The High court of Kenya at Vihiga case No: HCCRPET/E002/2024 cited
SILAS MALIOLO ZAKAYO AND JAMES MASINDE WAFULA AND OTHERS VS
REPUBLIC (Coram: HON. JUSTINE J. KAMAU (J) held the nature of sentence
currently being served by LIFE & DEATH petitioners are inconsistent with
Article 28 of the Constitution of Kenya as they disenfranchise the petitioner
dignity.
d. The High court of Kenya at Mombasa Constitution and Human Rights
Division petition No: 5 of 2022 AS CONSOLIDATED with Constitutional
petition no: 6 of 2022) SHABAN SALIM RAMADHAN & 8 OTHERS OLGA
SAWE (J) made a declaration that the sentence under section 296 (2) and
297 (2) of penal code that is being served by the prisoners is
unconstitutional.
e. More grounds in the sworn affidavit and other to be heard at the hearing
thereof.
3. In support of the application is the sworn affidavit of Gideon Indire Ndeda who
deponed as follows:
a. That I am an adult male Kenyan Citizen of sound mind hence competent
and indisposition to make oath and swear this affidavit.
b. That I was charged, convicted and sentenced to serve a death sentence in
offence of Robbery with violence c/s 296 (2) of the penal code a sentence
which was later commuted to life sentence following presidential pardon.
c. That I was aggrieved and dissatisfied with both conviction and sentence
and I appealed against the same in the High Court of Kenya at Kakamega.
The High Court of Kenya at Kakamega conferred conviction and upheld the
sentenced.
d. That I herein again step before this seat of Justice requesting this court to
consider complex leniency, mercy and grace than condemnation and met out
a least prescribed punishment than the current one.
Decision
4. This court is being asked to review the sentence imposed by the trial court
and subsequently appealed against as expressly stated in the affidavit of the
applicant placing reliance on the following Articles 50 (2)(p), 50 (2)(q), 22,
23(3), 25(c), 159 (2)(a)(b)(d) Constitution of Kenya 2010. According to the
applicant, his appeal on conviction and sentence was dismissed by the High
Court at Kakamega in Appeal Case No. 149 of 2004.
5. This is a court with concurrent jurisdiction with the High Court of Kakamega
which determined the appeal in so far as conviction and sentence is
concerned. This court can only entertain a petition of this nature if it satisfies
the criteria under Article 50(6)(a)(b) of the Constitution. This is what the law
prescribes in Kenya in this Constitutional imperative of a retrial. This
provision under Article 50(6)(a)(b) of the Constitution on the other hand
provides that a convict has the right to petition the High Court for a new/fresh
trial. The Article reads 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.”
A fresh trail entails a re-Constitution of the trial court to admit the charge(s)
afresh and to re-hear them. The two limbs under Article 50(6) must be
established, before a High Court can order a re-trial.
6. Where the High Court finds that the first limb of Article 50(6) has been
satisfied, it will proceed to interrogate the second limb: whether new and
compelling evidence has become available.
The Supreme Court in Tom Martins Kibisu -vs- Republic [2022]
eKLR describes “new evidence” as “evidence which was not available at
the time of trial and which, despite exercise of due diligence, could not have
been availed at the trial”; and “compelling evidence” as “evidence that
would have been admissible at the trial, of high probative value and capable
of belief, and which would probably have led to a different verdict had it
been adduced at trial.”
New and compelling evidence is therefore evidence that on the face of it is
material to, or capable of affecting or varying the subject charges, the
criminal trial process, the conviction entered, or the sentence passed against
an accused person.
7. The petition must be tested within the strict Constitution threshold which
include the following grounds:
• Exhaustion of appeals (Article 50(6)(a)): the applicant’s appeal must
have been dismissed by the highest court they are entitled to appeal to, or
they must have missed the original window to appeal.
• New compelling evidence (Article 50(6)(b)): the evidence must not have
been available at the original trial could not have been found with
reasonable diligence, and is capable of proving innocence or highlighting a
violation of Constitutional duties.
8. It is under this doctrine of newly discovered or newly compelling evidence a
court may order a new trial or a retrial on sentence if a convicted person can
prove that the evidence in question was not available at his/her original trial,
or on appeal and could not have been discovered prior to the trial or appeal
despite due diligence. As if that is not enough that evidence is highly probative
enough that it would probably change the outcome of the case. The court in
Philip Mueke Maingi & 2 Others v Republic [2022] eKLR explained it 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) fora re-trial, as he would
have exhausted his course of appeal at the High Court.
9. This provision has become the focus by convicted persons who have their
appeals heard and determined conclusively. The only concern I raise, is about
them misapprehending the yardstick on new compelling evidence and the
doctrine of jurisdictional exhaustion. It is my considered view that there
should be a definite time limit within which motions for new trial based on
newly discovered or compelling evidence should be made, unless the trial
court in its discretion, for good cause shown, allows the motion to be filed. Is
it not desirable that at some point in time further consideration of criminal
cases by the court should be at the tail end to be left to be subjected to the
provisions of Article 133 of the Constitution on the prerogative writ of mercy.
10. In my experience at the bench this far the dictum in the Francis Muruatetu
case by the Supreme Court open flood gates of litigation on re-sentencing.
Unfortunately, for the petitioners they have entirely misconstrued the
predominant legal principles in the case as established and continue to rely
on it to file multiplicity of applications. Woe unto them as some of the petitions
and applications are void and voidable for want of jurisdiction, as now settled
in the following cases:
Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2
others (2012):
The seminal ruling defining that a court's jurisdiction flows only from the
Constitution or written law, and cannot be expanded through judicial
innovation or legislation.
The Court in Seven Seas Technologies Limited Vs Eric Chege(2014)eKLR the
court held that:
“The authority which a court has to decide matters which are litigated
before it or to take cognizance of the matters presented before it in a
formal way for its decision. The limits of this authority are imposed by
the Statute, charter or commission which constituted and may be
extended or restricted by the like means. If no restriction is imposed the
jurisdiction is said to be unlimited. A limitation may be either as to the
kind and nature of the actions and matters of which the particular court
has cognizance or to the area over the jurisdiction shall extend, or it may
partake of both these characteristics.”
11. The broad principles, which govern review and appeals from the rulings and
judgments originating from the subordinate courts to the High Court, are now
well settled. There is very little room for any Judge to craft a new procedural
or statutory provision so that an already decided case by a competent court
can again be reopen and issues canvassed afresh. I reiterate once more that
jurisdiction is the livewire and bedrock of al adjudication of cases be it
criminal or civil or commercial etc. As for me these entire proceedings by the
Petitioner/Applicant are rendered a nullity.
12. In so far as Article 50(6)(a)(b) of the Constitution is concerned, there is no
newly discovered evidence compelling enough for a motion on a new trial on
sentence to be entertained by this court. The notice of motion therefore as
strongly submitted by the applicant/petitioner be and is hereby dismissed for
want of merit.
DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.
Mr. Leina Davies for the State
RULING
1. Before this court is a Notice of Motion dated 24th December 2025 seeking the
following orders:
a. Spent.
b. May this court be pleased to reduce the applicant’s sentence to at least
severe one than the current life sentence.
c. That may this court waive any cost/fee involved and see to it that the
applicant shall be present at the hearing thereof.
2. Based on the grounds that:
a. That the appellant was not allowed to mitigate for the trial and appeal court
at that time stated that their hands had been tied by one mandatory
sentence provided by law.
b. Rehabilitation, Reformation, Social re-adoption and being profusely
remorseful.
c. The High court of Kenya at Vihiga case No: HCCRPET/E002/2024 cited
SILAS MALIOLO ZAKAYO AND JAMES MASINDE WAFULA AND OTHERS VS
REPUBLIC (Coram: HON. JUSTINE J. KAMAU (J) held the nature of sentence
currently being served by LIFE & DEATH petitioners are inconsistent with
Article 28 of the Constitution of Kenya as they disenfranchise the petitioner
dignity.
d. The High court of Kenya at Mombasa Constitution and Human Rights
Division petition No: 5 of 2022 AS CONSOLIDATED with Constitutional
petition no: 6 of 2022) SHABAN SALIM RAMADHAN & 8 OTHERS OLGA
SAWE (J) made a declaration that the sentence under section 296 (2) and
297 (2) of penal code that is being served by the prisoners is
unconstitutional.
e. More grounds in the sworn affidavit and other to be heard at the hearing
thereof.
3. In support of the application is the sworn affidavit of Gideon Indire Ndeda who
deponed as follows:
a. That I am an adult male Kenyan Citizen of sound mind hence competent
and indisposition to make oath and swear this affidavit.
b. That I was charged, convicted and sentenced to serve a death sentence in
offence of Robbery with violence c/s 296 (2) of the penal code a sentence
which was later commuted to life sentence following presidential pardon.
c. That I was aggrieved and dissatisfied with both conviction and sentence
and I appealed against the same in the High Court of Kenya at Kakamega.
The High Court of Kenya at Kakamega conferred conviction and upheld the
sentenced.
d. That I herein again step before this seat of Justice requesting this court to
consider complex leniency, mercy and grace than condemnation and met out
a least prescribed punishment than the current one.
Decision
4. This court is being asked to review the sentence imposed by the trial court
and subsequently appealed against as expressly stated in the affidavit of the
applicant placing reliance on the following Articles 50 (2)(p), 50 (2)(q), 22,
23(3), 25(c), 159 (2)(a)(b)(d) Constitution of Kenya 2010. According to the
applicant, his appeal on conviction and sentence was dismissed by the High
Court at Kakamega in Appeal Case No. 149 of 2004.
5. This is a court with concurrent jurisdiction with the High Court of Kakamega
which determined the appeal in so far as conviction and sentence is
concerned. This court can only entertain a petition of this nature if it satisfies
the criteria under Article 50(6)(a)(b) of the Constitution. This is what the law
prescribes in Kenya in this Constitutional imperative of a retrial. This
provision under Article 50(6)(a)(b) of the Constitution on the other hand
provides that a convict has the right to petition the High Court for a new/fresh
trial. The Article reads 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.”
A fresh trail entails a re-Constitution of the trial court to admit the charge(s)
afresh and to re-hear them. The two limbs under Article 50(6) must be
established, before a High Court can order a re-trial.
6. Where the High Court finds that the first limb of Article 50(6) has been
satisfied, it will proceed to interrogate the second limb: whether new and
compelling evidence has become available.
The Supreme Court in Tom Martins Kibisu -vs- Republic [2022]
eKLR describes “new evidence” as “evidence which was not available at
the time of trial and which, despite exercise of due diligence, could not have
been availed at the trial”; and “compelling evidence” as “evidence that
would have been admissible at the trial, of high probative value and capable
of belief, and which would probably have led to a different verdict had it
been adduced at trial.”
New and compelling evidence is therefore evidence that on the face of it is
material to, or capable of affecting or varying the subject charges, the
criminal trial process, the conviction entered, or the sentence passed against
an accused person.
7. The petition must be tested within the strict Constitution threshold which
include the following grounds:
• Exhaustion of appeals (Article 50(6)(a)): the applicant’s appeal must
have been dismissed by the highest court they are entitled to appeal to, or
they must have missed the original window to appeal.
• New compelling evidence (Article 50(6)(b)): the evidence must not have
been available at the original trial could not have been found with
reasonable diligence, and is capable of proving innocence or highlighting a
violation of Constitutional duties.
8. It is under this doctrine of newly discovered or newly compelling evidence a
court may order a new trial or a retrial on sentence if a convicted person can
prove that the evidence in question was not available at his/her original trial,
or on appeal and could not have been discovered prior to the trial or appeal
despite due diligence. As if that is not enough that evidence is highly probative
enough that it would probably change the outcome of the case. The court in
Philip Mueke Maingi & 2 Others v Republic [2022] eKLR explained it 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) fora re-trial, as he would
have exhausted his course of appeal at the High Court.
9. This provision has become the focus by convicted persons who have their
appeals heard and determined conclusively. The only concern I raise, is about
them misapprehending the yardstick on new compelling evidence and the
doctrine of jurisdictional exhaustion. It is my considered view that there
should be a definite time limit within which motions for new trial based on
newly discovered or compelling evidence should be made, unless the trial
court in its discretion, for good cause shown, allows the motion to be filed. Is
it not desirable that at some point in time further consideration of criminal
cases by the court should be at the tail end to be left to be subjected to the
provisions of Article 133 of the Constitution on the prerogative writ of mercy.
10. In my experience at the bench this far the dictum in the Francis Muruatetu
case by the Supreme Court open flood gates of litigation on re-sentencing.
Unfortunately, for the petitioners they have entirely misconstrued the
predominant legal principles in the case as established and continue to rely
on it to file multiplicity of applications. Woe unto them as some of the petitions
and applications are void and voidable for want of jurisdiction, as now settled
in the following cases:
Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2
others (2012):
The seminal ruling defining that a court's jurisdiction flows only from the
Constitution or written law, and cannot be expanded through judicial
innovation or legislation.
The Court in Seven Seas Technologies Limited Vs Eric Chege(2014)eKLR the
court held that:
“The authority which a court has to decide matters which are litigated
before it or to take cognizance of the matters presented before it in a
formal way for its decision. The limits of this authority are imposed by
the Statute, charter or commission which constituted and may be
extended or restricted by the like means. If no restriction is imposed the
jurisdiction is said to be unlimited. A limitation may be either as to the
kind and nature of the actions and matters of which the particular court
has cognizance or to the area over the jurisdiction shall extend, or it may
partake of both these characteristics.”
11. The broad principles, which govern review and appeals from the rulings and
judgments originating from the subordinate courts to the High Court, are now
well settled. There is very little room for any Judge to craft a new procedural
or statutory provision so that an already decided case by a competent court
can again be reopen and issues canvassed afresh. I reiterate once more that
jurisdiction is the livewire and bedrock of al adjudication of cases be it
criminal or civil or commercial etc. As for me these entire proceedings by the
Petitioner/Applicant are rendered a nullity.
12. In so far as Article 50(6)(a)(b) of the Constitution is concerned, there is no
newly discovered evidence compelling enough for a motion on a new trial on
sentence to be entertained by this court. The notice of motion therefore as
strongly submitted by the applicant/petitioner be and is hereby dismissed for
want of merit.
DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.