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Court of AppealDismissedCivil Appeal No. 259 of 2012· [2014] KECA 741 (KLR)

Kibisu v Republic (Civil Appeal 259 of 2012) [2014] KECA 741 (KLR)

Court of Appeal of Kenya
7 February 2014
RNR. N. NambuyeDMD. K. MusingaKMK. M'Inoti
6,675 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a retired army officer's bid for a new trial because he produced no genuinely new evidence and his claims were already decided.

What this practically means

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Executive summary

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The appellant, a Lieutenant Colonel dismissed from the armed forces after conviction by a court martial on 15th April 2005, had waged protracted litigation: a judicial review application for stay of the court martial, Court Martial Appeal No. 1 of 2005 (conviction upheld, sentence reduced), a contempt application, a criminal revision application (dismissed), Petition No. 509 of 2006 (dismissed), and Civil Appeal No. 137 of 2007 (dismissed by this Court on 21st June 2013). He then filed Petition No. 197 of 2011 seeking a new trial under Article 50(6) of the Constitution of Kenya, 2010 on the basis of allegedly new evidence, and a declaration that section 115(3) of the repealed Armed Forces Act was unconstitutional for limiting appeals to one. Mumbi Ngugi, J dismissed the petition on 16th March 2012, and this appeal followed. The Court of Appeal framed four issues. It held that Article 50(6) applies retrospectively to pre-2010 convictions, but the affidavits relied upon were neither new nor compelling: the appellant knew the court martial's sitting dates from his own participation, and the findings that the stay order was never served and had lapsed had already been made by Lesiit and Makhandia, JJ. The issues were therefore res judicata. On constitutionality, the Court held that Article 50(q) guarantees an appeal only 'as prescribed by law', so a single statutory appeal did not offend either the former or the current Constitution. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Retrospective application of Article 50(6)

Holding

Article 50(6) embodies retrospective ingredients and applies to pre-2010 convictions

Reasoning

Relying on the Supreme Court's decision in Samuel Kamau Macharia, the court held that constitutional provisions may be retrospective where the language permits. Article 50(6) confers a window for the wrongly convicted that does not impinge on crystallized rights of others, and no time limit is prescribed. Articles 20(3) and 259 mandate an interpretation favouring enforcement of rights, so the provision was held to look both forwards and backwards.

p. 7
02

New and compelling evidence

Holding

The appellant's affidavits were not new or compelling; he knew the court martial's sitting dates from his own presence

Reasoning

The affidavits of Brigadier Oyugi and the process server added nothing: the appellant attended the court martial sittings of 7th, 8th and 13th April 2005 and knew the dates, and the process server's alleged service related to an order found not to exist. The High Court in Court Martial Appeal No. 1 of 2005 had already found the stay order was never served and had lapsed before the trial.

p. 8
03

Res judicata

Holding

The validity of the court martial proceedings had been conclusively determined by Lesiit and Makhandia, JJ

Reasoning

The questions of the stay order, the convening of the court martial and the validity of the charges were all litigated and determined in Court Martial Appeal No. 1 of 2005, and again in Petition No. 509 of 2006 and its appeal. Ngugi J rightly declined to reopen matters already determined by courts of competent jurisdiction.

p. 9
04

Constitutionality of section 115(3) of the Armed Forces Act

Holding

Section 115(3) was constitutional under both the former and current constitutions

Reasoning

Under the former Constitution, the High Court's appellate jurisdiction over courts martial was conferred by statute and could be limited by that statute. Under the 2010 Constitution, Article 50(q) guarantees appeal 'as prescribed by law', containing an inherent qualification; the saving provision in Schedule 6(7)(1) validated the section. Article 24 compliance was unnecessary given the inbuilt limitation.

p. 10

Legal principles established

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  • Article 50(6) of the Constitution of Kenya, 2010 applies retrospectively to convictions concluded before 27th August 2010
  • Definition of 'new and compelling evidence' under Article 50(6)(b)
  • Compelling evidence must be of high probative value and capable of affecting the verdict
  • Article 50(q) does not guarantee an unlimited number of appeals; the right of appeal is as prescribed by law

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(6)
  • Constitution of Kenya, 2010Article 50(q)
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 20(3)
  • Constitution of Kenya, 2010Article 259
  • Constitution of Kenya, 2010Article 263
  • Constitution of Kenya, 2010Article 163(4)
  • Constitution of Kenya, 2010Schedule 6 (7)(1)
  • Armed Forces Act, Cap 199 (repealed)section 68
  • Armed Forces Act, Cap 199 (repealed)section 115(3)
  • Kenya Defence Forces Act, No. 25 of 2012whole Act
  • Former Constitution of Kenyasection 60(1)
  • Former Constitution of Kenyasection 73
  • Former Constitution of Kenyasection 74
  • Criminal Appeal Act (England)1968
  • Court of Appeal RulesRule 29

Cases cited (4)

  • SAMUEL KAMAU MACHARIA & ANOTHER VS KENYA COMMERCIAL BANK LTD & 2 OTHERS
    Supreme Court Application No. 2 of 2011
  • DU PLESSIS VS DE KLERK AND ANOTHER
    (1997) 1 LRC 637
  • R VS HANRATTY
    (2002) 3 All ER 534
  • R VS PENDLETON
    (2002) 1 All ER 524
On appeal from
High Court of Kenya at Nairobi
Petition No. 197 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal against the decision of the High Court in a constitutional petition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kibisu v Republic (Civil Appeal 259 of 2012) [2014] KECA 741 (KLR)", Case Analysis (2014). Civil Appeal No. 259 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/741/eng@2014-02-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.