Case ID:180055

Joseph Onyango Owuor v Republic [2021] eKLR

Case Metadata

Case Number:

Criminal Petition 17 of 2018

Parties:

Joseph Onyango Owuor v Republic

Date Delivered:

21 Jul 2021

Case Class:

Criminal

Court:

High Court at Kisumu

Case Action:

Judgment

Judge(s):

Fred Andago Ochieng

Citation:

Joseph Onyango Owuor v Republic [2021] eKLR

Court Division:

Criminal

County:

Kisumu

Case Outcome:

Petition dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CRIMINAL PETITION NO. 17 OF 2018

JOSEPH ONYANGO OWUOR .................................................. PETITIONER

-VERSUS-

REPUBLIC..................................................................................

RESPONDENT

JUDGMENT

The Petitioner,

JOSEPH ONYANGO OWUOR

, has sought the following 4 susbstantive orders;

“(a) A declaration that new and compelling

evidence has become available, which

evidence if the trial had an opportunity

to view, would have reached a different

conclusion and thus a retrial is necessary.

(b) A declaration that the manner in which

the trial court conducted and subsequently

consolidation of the petitioner’s case with

that for which he was never charged or

mentioned as a suspect was unfair, in bad

taste and not in furtherance of the course

of justice as a breach of the petitioner’s

right to a fair hearing within a reasonable

time.

(c) An order for a fair trial within a reasonable

period.

(d) A declaration that the mandatory death

sentence prescribed by Section 204 of the

Penal Code is unconstitutional and the

consequent award of damages for that

illegality.”

1.

The Petition was filed by the Law Firm of

AMONDI & CO. ADVOCATES

, on 24

th

January 2018.

2.

On 1

st

October 2018 the Petitioner and the Respondent agreed that the case would be set down for re-sentencing.

3.

The said agreement was informed by the pronouncement by the Supreme Court in the case of

FRANCIS KARIOKO MURUATETU & ANOTHER Vs REPUBLIC PETITION NO. 15 OF 2015

.

4.

However, the Petitioner had a change of mind, and decided that he wished to canvass the whole petition.

5.

On 12

th

June 2019 the Petitioner told the Court that he wished to canvass his application personally. After ascertaining from the Petitioner if he was sure about representing himself, the court allowed him to proceed with the Petition.

6.

However, when the hearing was scheduled to start, at 10.59a.m, Mr. Achura advocate came on the record as the Petitioner’s lawyer.

7.

The Petitioner told the Court that he was happy to have Mr. Achura represent him.

8.

Counsel informed the Court that the Petitioner had instructed him to pursue the relief of a re-trial. At that stage, Mr. Achura advocate sought an adjournment so that he could have an opportunity to discuss the matter with the advocate who was on the record, as acting for the Petitioner.

9.

On 23

rd

September 2019, the Petitioner said that although the state had given him an advocate, the said advocate had not contacted him on that date. He therefore sought an adjournment.

10.

After several other adjournments, which were precipitated by the absence of the Petitioner’s advocate, the Petitioner decided that he was better off if he represented himself.

11.

Eventually, the Petitioner filed his submissions.

12.

As a precaution, the court opted to ascertain from the advocate who was on record, that he had agreed to have the Petitioner act for himself.

13.

When the Petitioner emphasized that he wished to act for himself, the Court allowed him to proceed.

14.

In his oral submissions, the Petitioner said that the petition was based on new and compelling evidence. He said that the person who had been arrested is named

EDWIN

.

15.

In the circumstances, the Petitiner submitted that it was not known how the said

EDWIN

became

JOSEPH

.

16.

The Petitioner drew the attention of the Court to the fact that

PW9

had testified that the person he arrested was

EDWIN OCHIENG

. As the Petitioner is named

JOSEPH ONYANGO

, he was of the view that that was new evidence which could have yielded a different result, if it had been brought to the attention of the trial court.

17.

In answer to the Petition, Ms Maurine Odumba, learned prosecution counsel, pointed out that the Petitioner had been charged with

FOUR (4)

counts of

Robbery with Violence

contrary to

Section 296 (2)

of the

Penal Code

;

TWO (2)

Alternative counts of

Handling Stolen goods

contrary to

Section 322 (2)

of the

Penal Code

; and

ONE (1)

count of

Being in possession of Ammunition without a Firearm Certificate

contrary to

Section 4 (1)

as read with

Section 4 (3)

of the

Firearm Act

.

18.

At page 92 of the record of the proceedings from the trial court, is the evidence which the Petitioner alluded to when he said that the person who was arrested by

PW9

was

EDWIN OCHIENG

.

19.

In order to appreciate the totality of the evidence tendered by

PW9

, I perused the record of proceedings from page 91 of the record, from where the Petitioner herein commenced cross-examination of

PW9

.

20.

The witness said;

“We arrested 3 suspects who were

Edwin Ochieng, which is the name

you gave us as your name. Then

there was John Muga and Naftali

Onyango.”

21.

The said witness went on to testify as follows;

“I asked you your names and you

said you were Edwin Ochieng.

…………..

You were booked at Kondele with

the offence of robbery in the name

of Edwin Ochieng alias Job.

I know you are charged in this

court. It was later established

that you gave us false names.”

22.

He concluded his testimony by saying that;

“Joseph Onyango’s name was

obtained by investigating officer.”

23.

In the circumstances, I find that the identity of the person who was arrested is neither new nor outstanding. It is an issued that was raised during the trial.

24.

And the witness gave a sound explanation concerning how the name Edwin Ochieng arose.

25.

Therefore, there was absolutely no basis for ordering a re-trial.

26.

Secondly, the Petitioner was convicted on Four (4) counts of

Robbery with Violence

.

27.

In the circumstances, the Petitioner ought to have demonstrated to this Court that he was entitlted to a variation of the sentence which was imposed by the trial court, and which was varied by the High Court, on appeal.

28.

I find that the Petitioner failed to demonstrate that the circumstances in which the multiple offences were committed called for a variation of the sentence.

29.

The Petitioner also failed to demonstrate to this court, how the trial court had violated his right to a fair trial within a reasonable time.

30.

In the result, the Petition lacks merit, and the same is dismissed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 21ST DAY OF JULY 2021

FRED A. OCHIENG

JUDGE