Have you been arrested? Arrested but not yet charged? Charged but awaiting the outcome of your case? Have you been convicted and sentenced to serve time in prison or to pay a hefty fine?
If so, it is important for you to understand that you have certain rights available to you under Article 50 of the Constitution of Kenya under the umbrella “right to a fair hearing” and for you to familiarise yourself with them.
Those rights, one of which is the focus of this article, are available to an individual at any stage of the criminal justice process, right from when one is under arrest, through to when one is charged for an offence, and even after one is convicted and sentenced.
Right to Petition for Re-Trial
Article 50 of the Constitution guarantees an individual certain rights even after he is found guilty of an offence and sentenced.
Article 50(2)(q) of the Constitution provides a convict the right to appeal against the decision of the trial court as well as the right to apply for a review of the decision by a higher court.
Article 50(6) of the Constitution on the other hand provides a convict 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:
- 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 trial 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.
1.0 Exhausting the Course of Appeal
This first limb of Article 50(6) needs explaining. The High 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) for re-trial, as he would have exhausted his course of appeal at the High Court.
2.0 New and Compelling Evidence
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.
Where a prosecution witness who testified against the convict either retracts or recants his/her testimony after the conviction of the accused, the witness’s statements post-conviction can be considered new and compelling evidence in certain circumstances.
Where there is new evidence, or a retraction or recanting of evidence tendered in the trial court, the High Court on a petition for retrial has the power to set aside the proceedings, conviction and sentence of the trial Court and to direct that a new trial be undertaken.
It is worth noting that a petition under Article 50(6) is not a re-trial or an appeal. It is not an opportunity for the High Court to re-evaluate the evidence that was tendered in the trial Court to see whether there was reasonable doubt or whether the petitioner’s conviction was supported by the evidence adduced. The inquiry in an Article 50(6) Petition is limited to testing whether the evidence is new and compelling.
Re-Trial
If a High Court finds that the two limbs under Article 50(6) have been established, it has sufficient basis to order a re-trial.
The power of the High Court to order a re-trial post-conviction came with the 2010 Constitution. It did not exist in the previous Constitution and is in recognition of the principle that an innocent person should not be left to suffer the penalty of a conviction where there is new and compelling exculpatory evidence.
