Liza Jebiwott Koima v Republic

b. The Applicant was a first-time offender, and according to the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, the Court should have considered mitigating factors and individualized sentencing. c. The offence arose from a background of prolonged domestic violence, where the deceased had repeatedly assaulted the Applicant. The court failed to consider that the Applicant acted out of duress and provocation, contrary to the principles laid down in Republic v Samuel Kahindi Kadenge [2021] eKLR. d. The Applicant is remorseful, has taken full responsibility for her actions, and has sought reconciliation with the victim’s family. The Court of Appeal in Philip Muiruri Ndaruga v Republic [2016] eKLR held that remorse and attempts at reconciliation are key factors in reviewing sentence. e. The Applicant is 55 years old, and prolonged incarceration is having adverse effects on her health. Courts have held that advanced age and health conditions are valid reasons for sentence review (Dismas Wafula Kilwake v Republic [2018] eKLR. f. The Applicant has two children who are suffering due to her incarceration, and her in laws have denied her access to them. Courts have considered the impact of imprisonment on dependent children as a ground for sentence review (Lucy Wambui Murungi v Republic [2017] eKLR. g. The Applicant is suitable for a non-custodial sentence, as provided under Section 26 of the Penal Code and the Community Service Orders Act, 1998 and is willing to undergo rehabilitation. Decision 3. The Applicant has become before this Court for review of sentence imposed by this very Court placing reliance of the above cited authorities as the anchor for the Court to exercise discretion on the matter. She is therefore asking for a new trial in so far as the verdict on sentence is concerned. Therefore bringing the case within the purview of Article 50(6) (a) & (b) of the Constitution. The express provisions state as follows: (6) 4. A person who is convicted of a criminal offence may petition the High Court for a new trial a. The person’s appeal, is 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; and b. New and compelling evidence has become available. The criteria of locus standi under these provisions as construed from the Constitution itself is that the Applicant/Petitioner must demonstrate that he or she has exhausted the process of appeal or if he or she elects not pursue any further appeal on the impugned decision there must be sufficient cause to invoke the review jurisdiction of the Court. The critical test is in Clause (b) which emphasizes existence of new and compelling evidence which has become available demanding a new trial on any of the final orders of the judgment being questioned. “It is now established fact that under Article 50(6), “new evidence, means “evidence which was not available at the time of trial and which, despite exercise of the due diligence, could not have been availed at the trial”; and compelling evidence” implies “evidence that would have been admissible at the trial, or high probative value and capable of belief, and which, if adduced at the trial would probably have led to a different verdict”. A court considering whether evidence is new and compelling for a given case, must ascertain that it is, prima facie, material to, or capable of affecting or varying the subject charges, the criminal trial process, the conviction entered, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13441/eng@2025-09-29 2

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or the sentence passed against an accused person. A similar position was upheld by the court of appeal in Lieutenant Martin Kibisu vs Republic where the Court defined new evidence “as evidence which was not available during trial after exercise of the diligence.” (See also Supreme Court in Tom Martins Kibisu vs Republic [2014] eKLR. 5. To introduce new evidence a petitioner or applicant must meet the set threshold to move the Court for a post judgment review for a new trial demonstrating that the new evidence was not available and the reasons why it was unavailable in the initial trial and if admitted it will compel the Court to review the outcome of the impugned judgment. The standard for what constitutes “compelling evidence” and the specific procedures vary by jurisdiction and case type. While not always possible, in some instances, a court may grant a new trial to consider significant new evidence, especially if it was not reasonably discoverable before the original judgment. In the various jurisprudential decisions cumulatively, the following guidelines forms the basic structure for a new trial to be allowed under Article 50(6) (a) & (b) of the Constitution. This new compelling evidence must be:Material: It would have significantly impacted the original proceedings or verdict.Newly discovered: it was not in your possession or knowledge before the original trial and could not have been found through reasonable diligence.Not cumulative: It was not in your possession or knowledge before the original trial and could not have been found through reasonable diligence.Impactful: It would likely lead to a different result if considered. 6. In describing the substance of the question under this Article of the Constitution where remedy of a new trial is being sought, the interplay is between the different grounds of challenge it is with all these sorts of cases from the import of Civil Law under Section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules. In this category of cases, the decision of the Court can be reviewed on the following grounds:Discovery of new and important matter of evidence.Mistake or error apparent on the face of the record.Any other sufficient reason, e.g., that there are in the judgment certain unmerited observations against the Petitioner. 7. For in this context the Applicant/Petitioner is seeking to invoke the jurisdiction of this Court to review the sentence altogether and have it quashed because of the new compelling evidence or substituted with some other verdict but which is not ultra-vires the law. In essence and in very few words, the Applicant has invited the Court to take into account her advanced age, conditions in prison where she is currently held as a convict, her health and the aspect of being remorseful. In my view, putting all these together I am satisfied that for the sake of justice the Applicant has not discharged the burden of proof that the impugned decision on sentence suffers from an error of law apparent on the face of the record or the grounds advanced squarely fit the definition or dimension of Article 50 (6) (a) & (b) of the Constitution more so on new compelling evidence to order for a new trial. If the Court in assessing the affidavit could have found errors on questions of law bedeviling the decision on sentence it would appropriate and proportionate to review it de novo. For example, if the Applicant/Petitioner could have advanced the arguments that the issue on sentence raises questions of constitutional interpretation and the particular terms under Section 204 of the Penal Code which prescribes the death penalty for any convicted person found guilty for the offence of murder contrary to Section 203 of the Penal Code. This is not the case according to our affidavit. In each stage of the proceedings under review I find no evidence of abuse of discretion or culpability of this Court on grounds of arbitrary and capricious review. 8. For purposes of this application the evidence is wanting from the Applicant to pass the test under Article 50 (6)(a) & (b) of the Constitution for a remedy on de novo trial on sentence. The application/ petition is dismissed for lack of merit. DATED, SIGNED AND DELIVERED VIA EMAIL AND CTS AT ELDORET THIS 29TH SEPTEMBER 2025 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13441/eng@2025-09-29 3

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…………………………………… R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13441/eng@2025-09-29 4

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