[2016] KEHC 601 (KLR)
The court found that the applicant had presented evidence, including an affidavit from the complainant, which, if substantiated, could materially affect the outcome of the appeal by establishing that the complainant was not a minor at the time of the alleged offence. The court held that, in the interest of justice...
Source-derived case information.
- Citation
- [2016] KEHC 601 (KLR)
- Parties
- Applicant: Alexander Kaingo Kombe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 47 of 2015
- Procedural Posture
- Criminal Appeal / Ruling on Application for Review and Admission of New Evidence Pending Appeal
- Outcome
- application for review allowed; leave granted to adduce new evidence on appeal
- Judges
- DO Chepkwony
- Legal Topics
- Bail Pending Appeal, Admission of New Evidence, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alexander Kaingo Kombe
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Review and Admission of New Evidence Pending Appeal
Legal Issues
- 1 Whether the applicant should be admitted to bail pending appeal.
- 2 Whether the court should review its earlier ruling and allow the applicant to adduce new evidence on appeal.
- 3 Whether the new evidence regarding the complainant's age is sufficient to warrant review.
Ratio Decidendi
The court found that the applicant had presented evidence, including an affidavit from the complainant, which, if substantiated, could materially affect the outcome of the appeal by establishing that the complainant was not a minor at the time of the alleged offence. The court held that, in the interest of justice and pursuant to section 358(1) of the Criminal Procedure Code, it was appropriate to allow the applicant to adduce additional evidence during the hearing of the appeal. The court emphasized that such evidence must be given on oath and that the state would have the opportunity to cross-examine the witness(es). The application for review was therefore allowed to the extent of...
Court Disposition
application for review allowed; leave granted to adduce new evidence on appeal
Orders
- The applicant is granted leave to adduce additional evidence during the hearing of the appeal.
- The additional evidence shall be adduced on oath.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL APPEAL NO. 47 OF 2015
ALEXANDER KAINGO KOMBE ..........................................APPLICANT
VERSUS
REPUBLIC ..........................................................................RESPONDENT
RULING
By a Notice of Motion application dated 14t March 2016. And filed on even date, the Applicant seeks to have this court review and set aside its ruling made on 22nd December, 2015 and allow prayers made in the Notice of Motion application dated 6th October, 2015.
The ground upon which this application is based is that the complainant, who is Pw1 in Kwale Chief Magistrate’s Criminal case number 645 of 2012, has now sworn an affidavit confirming the facts relied upon in the Notice of Motion application dated 26th October, 2015.
In the Notice of Motion application dated 26th October, 2015, the said applicant had sought to have.
(a ) the court admit him to bail with or without sureties or order the execution of the sentence or order appealed against suspended pending the hearing and determination of the appeal herein;
(b) the court grant him leave to adduce new evidence in this appeal.
The said application was based on the following grounds; that;
1. The appellant is by law entitled to bail pending appeal;
2. The appellant has a meritorious appeal with a high chance of success.
3. The appellant has obtained proof that the complainant was not a child at the trial of the alleged offence;
4. The complainant is ready and willing to attend court and disclose that she was not a child at the time of the offence.
Both applications are supported by affidavits sworn by counsel, Yusuf Abourbakar and Beatrice Mwaka Mwakatiengo respectively.
The application for review is brought under section 354(3) of the Criminal Procedure Code which provides that;
“ The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may-
(a) In an appeal from a conviction;
(i) Reverse the finding and sentence, and acquit or discharge the accused ,or order him to be tried by a court of competent jurisdiction or;
(ii) alter the findings, maintaining the sentence, or with r without altering the findings, reduce or increase the sentence; or,
(iii) With or without a reduction or increase and with or without altering the findings, reduce or increase the sentence; or
(b) In an appeal against sentence, increase or reduce the sentence or alter the nature of sentence;
During the hearing of the application the applicant’s counsel Mr Aboubakar told court that the court declined to grant the 2nd prayer in the application of 26th October, 2015 for the reason that they did not explain how they had come across the new evidence particularly the clinical card. He then submitted that the complainant in the case before the subordinate court had, sworn an affidavit explaining how she had given the applicant the said clinical card and written a letter to explain this that Mr Abourbakar explained that in the course of hearing the appeal, they were going to show that the complainant was not a child but was above 18 years of age at the time of the alleged offence.
In response, M/s Mutua, counsel for the state stated that the court has power to review its earlier order but can only do this when new evidence is in line with the law. She said that the new evidence still shows that the appellant was indeed a minor at the time of the alleged incident.
In considering the application by the applicant, I have read through the affidavit of Beatrice Mwaka Mwakatiengo dated 14th March, 2016, the arguments by both counsel in respect of the said application together with the relevant provisions of the law.
I find that the applicant claims to have evidence to confirm that the complainant was not a minor at the time of the alleged offence, which, if found tangible, could lead to a different finding.
In the interest of justice, I allow the application by the applicant and allow additional evidence to be adduced during the hearing of their appeal as for the provisions of section 358 (1) of the Criminal Procedure Code.
The said evidence shall be adduced on oath and the state, through the state counsel shall be at liberty to cross examine the witness (s).
Ruling signed, delivered and dated this 17th November 2016.
D. O. CHEPKWONY
JUDGE
In the presence of:
Mr Ayondo for the state
Mr. Mayaka holding brief for Mr. Aboubakar
C/clerk- Kiarie