Gitonga v Republic (Petition 11 of 2017) [2018] KESC 6 (KLR) (7 December 2018) (Ruling)
Charles Maina Gitonga v Republic [2018] eKLR
Neutral citation:
[2018] KESC 6 (KLR)
Republic of Kenya
Petition 11 of 2017
MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu & I Lenaola, SCJJ
December 7, 2018
Between
Charles Maina Gitonga
Applicant
and
Republic
Respondent
(Being an application for leave to adduce additional evidence during the hearing and determination of the Petition of Appeal)
Ruling
1.Upon perusing the Notice of Motion application by the Applicant dated 18th September 2017 and filed on 26th September 2017 premised upon the provisions of Sections 3 of the Supreme Court Act, 2011, Rules 18(2), 23 and 26 of the Supreme Court Rules, 2012 seeking leave to adduce additional evidence during the hearing of the Petition of Appeal dated 21st July 2017 and filed contemporaneously with the instant application; and;
2.Upon reading the Applicant’s affidavit sworn by the Applicant on 7th September 2017, filed alongside the affidavits of Catherine Wanjiru Gitonga and Edith Wambui Gitonga both sworn on 3rd August 2017; and
3.Upon reading the Respondent’s Grounds of Opposition dated and filed on 13th October 2017 and;
4.Upon considering the Applicant’s written submissions dated and filed on 9th October 2017 wherein he submits that he intends to adduce additional evidence before the Court, the nature of which relates to the fundamental issue of the right to assistance of counsel in criminal matters and the right to legal representation provided at the State’s expense in cases where substantial injustice would otherwise occur;
5.And which evidence, it was argued, was not available or made available at the trial Court (the Magistrate’s Court) and Appellate Court of first instance (the High Court), and which additional evidence is relevant and credible that after considering the evidence, this Court would go on to re-consider and make an informed decision both in the interest of justice and to prevent further miscarriage of justice that has been occasioned to the Applicant;
6.Further, upon considering the Respondent’s submissions filed on 13th October 2013 in which it was submitted that the Applicant intends to introduce new evidence that would fundamentally alter the nature of the case, and which evidence the Applicant had the opportunity to adduce at both the trial Court and the Appellate Court of first instance, which he failed to do, for determination by those Courts; and
7.Furthermore, noting the Respondent’s opposition to the Application on the grounds that this Court does not have the jurisdiction, as an appellate Court pursuant to Article 163(4)(a) of the Constitution, to admit new evidence by affidavits or otherwise, and;
8.Upon considering the main ground in the Application that the new evidence which the applicant seeks to introduce before the Court is premised on the provisions of Articles 50(2)(g) and (h) of the Constitution on the fundamental question of the right to assistance by counsel and legal representation at the State’s expense as settled in Karisa Chengo & 2 Others v R (2015) eKLR and that he was not afforded legal representation at the trial Court and the Appellate Court of first instance in violation of that right;
9.We now opine as follows:(a)It is manifestly clear to this Court that, while the Applicant was tried and convicted in the trial Court, the question of Legal representation did not arise at all. Similarly, that at the High Court during the hearing of his first appeal, the issue was never raised but was only raised in the Court of Appeal in Criminal Appeal No.78 of 2014 and the matter properly addressed by that Court within its jurisdiction, and;(b)Noting that legal representation is not an inherent right available to an accused person under Article 50 of the Constitution or any provisions of the Repealed Constitution and that under Section 36(3) of the Legal Aid Act No. 6 of 2016, an accused person has to first establish that he was unable to meet the expenses of his trial;(c)The application does not satisfy any principle prior or subsequent to the decision by this Court in Petition No. 7 of 2018 Hon. Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others where the Court stated recently regarding the principles for allowing additional evidence;(d)Applying the above principles to the instant Application, we are unconvinced that the Applicant was not accorded an opportunity to obtain legal representation within the law as then in place during his trial and appeals or as later enacted through the Legal Aid Act, 2016. We cannot also fault the trial Court and the Appellate Court of first instance for alleged violation of Article 50(2)(g) & (h) of the Constitution of Kenya.(e)The appeal before us does not turn on the issue of the right to legal representation and therefore the issue, while otherwise an important one, is only one of more significant issues in the appeal.(f)More fundamentally, the issue of legal representation or lack thereof is a matter of record and no evidence beyond the trial and appellate Courts’ record is required to submit on it as a matter of law which is what this Court is seized of.
10.And having therefore considered the application and submissions by the respective parties, by a unanimous decision of this Bench, we make the following orders under Section 23(2)(b) of the Supreme Court Act and Rules 21 and 23 of the Supreme Court Rules, 2012:
Orders
DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF DECEMBER, 2018.........................................................M.K. IBRAHIMJUSTICE OF THE SUPREME COURT.........................................................J. B. OJWANGJUSTICE OF THE SUPREME COURT...........................................................S. C. WANJALAJUSTICE OF THE SUPREME COURT...........................................................N.S. NJOKIJUSTICE OF THE SUPREME COURT...........................................................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA