[2001] KEHC 70 (KLR)
The court found that the statement in question was clearly referred to and cross-examined upon during the trial, even though it was not formally produced as an exhibit. The omission was attributed to the appellant's lack of legal representation and ignorance of procedure, but the court emphasized that ignorance of...
Source-derived case information.
- Citation
- [2001] KEHC 70 (KLR)
- Parties
- Appellant: Benard Kago Njuguna; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 180 of 1999
- Procedural Posture
- Criminal Appeal / Interlocutory Application for Admission of Additional Evidence Pending Appeal Hearing
- Outcome
- application allowed
- Legal Topics
- Admission of Additional Evidence, Appeal Record Completeness, Criminal Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Benard Kago Njuguna
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Interlocutory Application for Admission of Additional Evidence Pending Appeal Hearing
Legal Issues
- 1 Whether the statement recorded by police from PW.8 Abdalla Hamisi should be admitted as part of the record of appeal.
- 2 Whether failure to produce the statement as an exhibit in the lower court precludes its admission at the appellate stage.
Ratio Decidendi
The court found that the statement in question was clearly referred to and cross-examined upon during the trial, even though it was not formally produced as an exhibit. The omission was attributed to the appellant's lack of legal representation and ignorance of procedure, but the court emphasized that ignorance of the law is not a defence. Nevertheless, the court exercised its discretion to allow the statement to be included in the record of appeal, reasoning that it was not new evidence but a necessary document already forming part of the trial proceedings. The inclusion was deemed essential for the appellate court's full appreciation of the evidence and for the fair determination of the...
Court Disposition
application allowed
Orders
- The statement recorded by police from PW.8 Abdalla Hamisi shall be produced when the appeal comes up for hearing.
Full Case Text
Judgment text and source record
18 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO.180 OF 1999
(From Original Conviction and Sentence in Criminal Case No.970 of 1998 of the Chief Magistrate’s Court at Mombasa. –Jo-Anne Siganga, Miss – SRM)
BENARD KAGO NJUGUNA……………………….………..APPELLANT
= V E R S U S =
REPUBLIC………………………………………………….RESPONDENT
R U L I N G
By Notice of Motion filed on 26. 2.01, the Appellant Benard Kago Njuguna seeks leave to have a statement recorded by the Police from PW.8, ABDALLA HAMISI produced before this Court as part of the record of Appeal. He invokes S.358 of the Criminal Procedure Code which donates the power to this Court to admit additional evidence for reasons to be recorded.
In his Affidavit in support he states that he cross-examined the said witness on the statement and it was read out in court. It was not produced however as part of the court record which means the Applicant cannot refer to it in his Appeal. Opposing the application, Learned State Counsel Mr. Ogoti submitted that the opportunity to have the statement produced was before the Lower Court but the Applicant did not take it. Having the statement produced at this stage would be tantamount to cross-examining the witness on Appeal and thus constructing a new line of defence on Appeal.
I have perused the Lower Court record as pertains to the witness ABDALLA HAMISI (PW.8). The statement in issue clearly featured in the proceedings and was read out in court. The witness answered questions on it. The applicant could have applied for production of the statement as an exhibit but he did not. He was unrepresented and says he was ignorant of the procedure. As the adage goes however, ignorance of the law is no defence.
I think in this particular matter what the Applicant seeks is not new evidence as such. It is inclusion as part of the record of Appeal of a document clearly referred to and cross-examined on. It is a necessary document for the Appellate Court to have sight of for further appreciation of the evidence and I would in my discretion allow the application made. The statement recorded by Police from PW.8 ABDALLA HAMISI shall be produced when the Appeal comes up for hearing.
I may observe that the Applicant appears to have Advocates on record but the application is made in person. He should clarify whether he is now acting in person before the Appeal is set down for hearing.
Dated this 11th day of May 2001.
P.N. WAKI
J U D G E