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Jomo Boke Marwa v. Republic

(2019) JELR 100754 (CA)

Court of Appeal  •  Criminal Appeal 116 of 2015  •  7 Oct 2019  •  Kenya

Philip Nyamu Waki, Daniel Kiio Musinga, James Otieno Odek



1. This is not a second criminal appeal. It is an application grounded upon Article 50 (b) of the Constitution challenging a judgment of the High Court declining to grant an order for a new trial.

2. Article 50 (6) of the Constitution provides as follows:

“(6) A person who is convicted of a criminal offence may petition the High Court for a new trial if:

(a) 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.”


3. The appellant was charged before the magistrate’s court with the offence of robbery with violence. He was tried, convicted and sentenced to death. He lodged a first appeal to the High Court in Criminal Appeal No. 278 of 2010. His appeal was dismissed. He did not file a second appeal to the Court of Appeal. Instead, he filed a Criminal Appeal Application to the High Court…

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