[2020] KEHC 1356 (KLR)
The court determined that the only way for the appellant's new alibi evidence to be properly considered is to reopen the defence case at the trial court. Both parties agreed that the evidence is new and material. The court found that admitting the evidence is necessary for the just resolution of the matter and that...
Source-derived case information.
- Citation
- [2020] KEHC 1356 (KLR)
- Parties
- Appellant: Gerrishon Okudu Otieno; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 87 of 2018
- Procedural Posture
- Criminal Appeal / Ruling on Application to Adduce Additional Evidence
- Outcome
- Application to adduce additional evidence allowed; trial court to be reopened for limited purpose.
- Legal Topics
- Adducing Additional Evidence, Alibi Defence, Reopening Defence Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gerrishon Okudu Otieno
Appellant
Director of Public Prosecutions
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application to Adduce Additional Evidence
Legal Issues
- 1 Whether the appellant should be allowed to adduce additional evidence in the form of an alibi at the trial court.
- 2 Whether reopening the defence case is appropriate to admit the new evidence.
Ratio Decidendi
The court determined that the only way for the appellant's new alibi evidence to be properly considered is to reopen the defence case at the trial court. Both parties agreed that the evidence is new and material. The court found that admitting the evidence is necessary for the just resolution of the matter and that the procedure should be limited to the appellant giving his alibi evidence. The trial magistrate is to write a fresh judgment after considering the new evidence. This approach ensures that the appellant's right to a fair trial is upheld and that the appellate process is not prejudiced by the exclusion of potentially exculpatory evidence.
Court Disposition
Application to adduce additional evidence allowed; trial court to be reopened for limited purpose.
Orders
- Makadara Criminal Case No. 6270/2012 to be reopened for further defence case limited to the appellant giving alibi evidence.
- Upon tendering alibi evidence, the defence case to be closed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL CASE NO.87 OF 2018
GERRISHON OKUDU OTIENO....................................................APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS............................RESPONDENT
RULING
I have considered the submissions from both the appellant and Respondent’s sides. I have also perused the orders of the Hon. Lady Justice G. W. Ngenye – Macharia delivered on 5. 11. 2019. The said orders allow the appellant’s application to adduce additional evidence in the form of an alibi in Makadara Criminal case no. 6270/2012, Abdul Rahim Irungu and Gerishon Otieno. Both sides have agreed that this is new evidence and that admitting the same is tantamount to opening up the defence case. I agree with the submissions that this is the only way in which this evidence which the appellant intends to give, shall form part of the lower court proceedings, and possibly this appeal.
In the circumstances, I order as follows:-
i. That Makadara Criminal case number 6270/2012 be re-opened for further defence case only to the extent of and limited to the applicant/appellant (accused) giving his evidence on alibi.
ii. That upon tendering his evidence of alibi, the defence case to be closed.
iii. That this matter be heard by the initial trial magistrate. However, if the initial trial magistrate has left the station, the chief magistrate shall allocate this matter to a different magistrate with jurisdiction.
iv. The trial magistrate shall proceed to write a fresh judgment in view of the fresh evidence of the defence.
v. Matter to be accordingly mentioned before the Chief Magistrate’s court for further directions. Mention 29. 10. 2020.
HON. JUSTICE D. OGEMBO OGOLA
23RD OCTOBER 2020