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Supreme CourtDismissedPetition 3 of 2014· [2014] KESC 55 (KLR)

Tom Martins Kibisu v Republic

Supreme Court of Kenya
25 November 2014
Philip Kiptoo TunoiP. K. TunoiMohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguN. S. Ndungu
6,271 words in judgment
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The bottom line

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Supreme Court dismisses army officer's appeal, clarifying what qualifies as 'new and compelling evidence' for a new trial.

What this practically means

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A former army officer convicted by court-martial tried to get a new trial, claiming new evidence about a stay order. The Supreme Court said the evidence wasn't truly new or relevant to his guilt. It also ruled that a law limiting appeals in military cases was valid under both the old and new constitutions. The appeal was dismissed, and each party paid their own costs.

Executive summary

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This was an appeal by Lieutenant-Colonel Robert Tom Martins Kibisu against the Court of Appeal's judgment of 7th February 2014, which had upheld the High Court's dismissal of his petition for a new trial under Article 50(6) of the Constitution. The appellant had been dismissed from the Armed Forces in 2005 following a court martial conviction for conduct prejudicial to good order and discipline. He had previously challenged the conviction through multiple proceedings, including a criminal appeal and a constitutional petition, all of which were dismissed. In the instant appeal, he sought declarations that the court martial lacked jurisdiction, that his fair trial rights were violated, that Section 115(3) of the repealed Armed Forces Act was unconstitutional, and that he was entitled to a new trial, restoration of rank, pension, and damages. The Supreme Court, in a unanimous judgment delivered by Tunoi SCJ, dismissed the appeal. The Court first held that it had jurisdiction under Article 163(4)(a) because the appeal raised constitutional questions, despite the appellant's lack of legal precision. On the merits, the Court found that the appellant had not satisfied the requirements of Article 50(6) for a new trial, as the alleged 'new and compelling evidence'—certified proceedings of a judicial review matter—was neither new nor compelling; the issue of service of stay orders had already been determined by the High Court and was irrelevant to the charges or verdict. The Court also held that Section 115(3) of the Armed Forces Act, which made the High Court the final appellate court in court martial matters, was not unconstitutional. It was valid under the repealed Constitution and remained in force under the 2010 Constitution until its repeal by the Kenya Defence Forces Act, 2012. The Court ordered each party to bear their own costs.

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal where the appellant, a lay person, did not precisely frame constitutional questions.

Holding

The Supreme Court has jurisdiction where the appeal raises issues involving the interpretation or application of the Constitution, even if the appellant, as a lay person, lacked the skill to craft the issues with precision.

Reasoning

The Court noted that the appellant, acting without legal assistance, drafted his own petition. Despite the lack of precision, the appeal raised two clear constitutional questions: whether the case satisfied Article 50(6) for a new trial, and whether Section 115(3) of the Armed Forces Act was unconstitutional. The Court held that these were proper questions under Article 163(4)(a), as they involved the interpretation or application of the Constitution and came through from the High Court and Court of Appeal. The Court distinguished the respondent's objection based on res judicata, noting that res judicata bars re-litigation in courts of concurrent jurisdiction, not appeals to a higher court.

p. 11
02

Whether the appellant's case satisfied the requirements of Article 50(6) of the Constitution for a new trial based on 'new and compelling evidence'.

Holding

The appellant failed to satisfy the requirements of Article 50(6) because the alleged 'new evidence'—certified proceedings of the judicial review matter—was not new and compelling, as it related to service of stay orders, not to the charges or the verdict, and had already been considered by the High Court on appeal.

Reasoning

The Court adopted the Court of Appeal's definition of 'new and compelling evidence'. It found that the appellant's claimed new evidence—the certified proceedings of Misc. Civil Application No. 365 of 2005—was not new, as the issue of service of stay orders had been determined by Lesiit and Makhandia JJ in Criminal Appeal No. 1 of 2005. Even if service had been effected, it would not constitute compelling evidence because it had nothing to do with the framed charges or the verdict; it was of no probative value and would not support a different verdict. The Court concluded that the appellant had not met the threshold for a new trial.

p. 13
03

Whether Section 115(3) of the repealed Armed Forces Act, which made the High Court the final appellate court in court martial matters, was unconstitutional under the 2010 Constitution.

Holding

Section 115(3) was not unconstitutional; it was in conformity with the repealed Constitution and remained valid under the 2010 Constitution until its repeal by the Kenya Defence Forces Act, 2012.

Reasoning

The Court examined Section 60(1) of the repealed Constitution, which allowed the High Court's jurisdiction to be conferred by 'any other law'. Section 115(3) was such a law, making the High Court's decision final. Under the 2010 Constitution, Article 50(2)(q) provides that a person may appeal or apply for review 'as prescribed by law', and the prescribed law at the time was Section 115(3). The Court held that a law valid under the old Constitution could not be rendered unconstitutional by the new Constitution's promulgation, by virtue of Section 7 of the Sixth Schedule. The provision was a valid limitation on the right of appeal, not a violation of the right to a fair trial.

p. 3

Legal principles established

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  • New evidence under Article 50(6) must be unavailable at trial despite due diligence and compelling enough to likely change the verdict.
  • A law valid under the repealed Constitution remains valid after the 2010 Constitution unless specifically repealed, by virtue of Section 7 of the Sixth Schedule.
  • Res judicata bars re-litigation of the same issues in courts of concurrent jurisdiction, but does not block appeals to a higher court.
  • The Supreme Court can hear a lay person's appeal if it raises constitutional issues, even if not perfectly framed.
  • The right to appeal under Article 50(2)(q) is subject to the law as prescribed; a valid limitation does not violate the right to a fair trial.

Court orders

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  1. 1.The appellant's appeal dated 28th March, 2014 is hereby dismissed.
  2. 2.Each party to bear their own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 24(1), (2), (3), (5)
  • Constitution of Kenya, 2010Article 25(b) and (c)
  • Constitution of Kenya, 2010Article 50(6)
  • Constitution of Kenya, 2010Article 50(2)(q)
  • Constitution of Kenya, 2010Article 163(4)(a)
  • Constitution of Kenya, 2010Section 7(1) of the Sixth Schedule
  • Armed Forces Act (Cap. 199, Laws of Kenya) [repealed]Section 68
  • Armed Forces Act (Cap. 199, Laws of Kenya) [repealed]Section 115(3)
  • Armed Forces Act (Cap. 199, Laws of Kenya) [repealed]Section 138(5) and (6)
  • Constitution of Kenya (1969) [repealed]Section 60(1)
  • Constitution of Kenya (1969) [repealed]Section 64(1)
  • Constitution of Kenya (1969) [repealed]Section 77
  • Constitution of Kenya (1969) [repealed]Section 84(1)
  • Civil Procedure Act (Cap. 21, Laws of Kenya)Section 7
  • Civil Procedure RulesOrder 5 and Rule 19
  • Evidence Act (Cap. 80, Laws of Kenya)Section 120
  • Kenya Defence Forces Act, 2012 (Act No. 25 of 2012)

Cases cited (7)

  • R. V. Pendeleton
    (2001) UKHL 66
  • R. v.
    (2002) EWCA Crim, 1141
  • Peter Ngoge v. Ole Kaparo
    Sup. Ct. Petition No. 2 of 2012 [2012] eKLR
  • Lawrence Ndutu & 6000 Others v. Kenya Breweries Limited & Another
    Sup. Ct. Petition No. 3 of 2012 [2012] eKLR
  • Jomunjo Education Foundation Limited v. Daniel Kipurket Lepalel & 3 Others
    2013 eKLR
  • The Commissioner of Police and the Director of Criminal Investigation Department and Another v. Kenya Commercial Bank and 4 Others
    (2012) eKLR
  • Bhagat Ram v. State of Rajasthan
    (1992) AIR 1502
On appeal from
Court of Appeal at Nairobi
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010

Key timeline

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2005
Appellant convicted by court-martial and dismissed from the Armed Forces for conduct prejudicial to good order and discipline.
2005
Appellant filed Criminal Appeal No. 1 of 2005 in the High Court, which was dismissed.
Not specified
Appellant filed a constitutional petition in the High Court seeking a new trial, which was dismissed.
2014-02-07
Court of Appeal upheld the High Court's dismissal of the petition for a new trial.
2014-03-28
Appellant filed an appeal to the Supreme Court.
2014
Supreme Court delivered judgment dismissing the appeal.

Practical implications

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For lawyers

Framing constitutional appeals precisely

When appealing to the Supreme Court under Article 163(4)(a), ensure you clearly identify the constitutional questions. However, the Court will still consider an appeal from a lay person who lacks legal precision, as long as the issues involve interpretation or application of the Constitution. Use this flexibility to guide clients who may not have legal training.

For businesses

Finality of internal disciplinary decisions

If your organization has internal disciplinary procedures (like a military or corporate tribunal), note that courts will uphold finality unless there is truly new and compelling evidence that was unavailable at the time. The threshold is high: the evidence must be probative and likely to change the outcome. Ensure your procedures are fair and documented to avoid repeated litigation.

For individuals

Pursuing new trials in Kenya

If you believe new evidence justifies a retrial, you must prove it was not available at your original trial despite your best efforts, and that it is strong enough to probably change the verdict. Simply showing a procedural error (like improper service of a stay order) is not enough if it does not relate to your guilt or innocence. Exhaust all appeals first.

Frequently asked questions

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What is new and compelling evidence under Article 50(6) of the Kenyan Constitution?+

It means evidence that was not available at your trial and could not have been found even with reasonable effort, and that is so strong it would likely have led to a different verdict. The Supreme Court in this case emphasized that the evidence must be directly relevant to the charges, not just a procedural issue.

Can I appeal a court-martial decision in Kenya?+

Yes, but the avenue depends on the law in force at the time. Under the repealed Armed Forces Act, appeals from court-martial went only to the High Court, whose decision was final. The current Kenya Defence Forces Act may provide a different route. Always check the specific law applicable to your case.

Does the Supreme Court of Kenya hear appeals from lay people?+

Yes, the Supreme Court can hear an appeal from a person without legal training if the appeal raises constitutional questions. The Court will not dismiss it just because the issues are not perfectly framed, as long as the core involves interpreting or applying the Constitution.

What is res judicata in Kenyan law?+

Res judicata means you cannot sue or litigate the same issue again between the same parties after a court of competent jurisdiction has made a final decision. However, it does not stop you from appealing to a higher court. This case confirmed that res judicata only applies to courts of equal rank, not to appeals.

Later judgments citing this (25)

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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, "Tom Martins Kibisu v Republic", Case Analysis (2014). Petition 3 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/55/eng@2014-11-25

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