[2023] KEHC 19333 (KLR)

HC v Republic (Criminal Appeal E003 of 2022) [2023] KEHC 19333 (KLR) (29 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19333 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Appeal E003 of 2022

RB Ngetich, J

June 29, 2023

Between

HC

Applicant

and

Republic

Respondent

Ruling

1. This is a ruling on notice of motion application dated February 24, 2023 brought under section 358 of the Criminal Procedure Code, cap. 75 (CPC) seeking orders as follows: -a.Spent.b.That the appellant/applicant be granted leave to tender further and/or additional evidence on the Appeal.

2. The applicant/appellant HC was charged, tried, convicted and sentenced to serve life imprisonment for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The particulars of the offence being that on the 24th day of July, 2021 at around 0100 hours in Baringo Central Sub-County within Baringo County he unlawfully killed MJ a minor aged 10 years. Being aggrieved and dissatisfied with conviction and sentence, he filed this appeal and application to tender additional evidence in the appeal.

3. The grounds on the face of the application are that, appellant/applicant was charged, convicted and sentenced to serve life imprisonment for the offence of manslaughter but contends that the death of the victim was as a result of renal disfunction.

4. That during the trial, the accused was unable to procure the attendance of crucial and credible witnesses who would have testified during the hearing because some of them were still students in school and some feared to testify for being implicated; and some of the witnesses were covered by Pw 1 and Pw 2 who did not want real culprits of the sexual assault and/or defilement of the deceased to be pointed out; that additional evidence shall disclose the names of the real culprits and also the truth as it is.

5. The Applicant filed affidavit sworn on the 6th day of January,2023 in support of the application. He states that he was convicted on the 11/1/22 by the Chief Magistrate’s court Kabarnet in Criminal case No. E1248 of 2021 on allegations of having defiled a minor namely MJ who subsequently died in 2021 and after her demise, he faced the charge of manslaughter.

6. The appellant/applicant avers that at the time of trial, he was unable to avail certain witnesses to testify in his favour because he could not contact them because of incarceration; that through the advice of his advocate, he has filed the present application to seek leave of court to enable him adduce additional evidence in appeal. He states that the witnesses were not available during the trial as they were prevented by his wife RK and RK who according to him initiated and masterminded the case.

7. The appellant/applicant avers that the minor girl stayed in his home for many years and he took care of her without any problem. That he learnt of the defilement after the girl fell ill and was taken to children’s home and people came accusing him.

8. The appellant further states that his wife had hidden the girl and told the crowd to beat him up but he had to run away to Kabarnet for his safety. He contends that he now has witnesses who know the truth of what happened, are willing to testify and seeks to be allowed to call for additional evidence during the hearing of the Appeal.

9. In response, the respondent filed affidavit on April 24, 2023 sworn by state counsel Vivian Ratemo.

10. The state counsel submits that the witnesses the applicant now seeks to be allowed to call are members of his household except one who is his neighbor which mean they were available during trial and the applicant would have availed them as witnesses.

11. Further that out of the 4 witnesses the appellant intends to call, only one appears to have been in school going at the time of the defence but no evidence has been shown to confirm that the said Titus was school going at the time of the defence hearing and in any event, the appellant did not pray for a further date (non- school going day) to avail the said witness.

12. Further, the appellant has not shown what difficulties he encountered in trying to avail the said witnesses during the trial since they are his family members. In his defence he said he had a maximum of five witnesses which confirm that he had no intention of calling other witnesses who were known to him.

13. The state counsel states that marital issues between the appellant and his wife are not new evidence as was stated by the appellants witnesses during defence hearing and the application is intended to use the so-called additional evidence to make out a fresh case and improve the chances of his appeal.

Submissions 14. Counsel for the appellant submitted that the test for grant of orders sought was clearly set out by the court of appeal in Samuel Kungu Kamau v Republic[2015] eKLR where the court pronounced itself on the guiding principles. That consideration are as follows:-a.Whether the evidence was available, easily procured and within the knowledge of the appellant herein during the trial.b.Whether the evidence was fresh and would make a significant impact in the determination of the appeal.

15. The respondent’s argument is that the evidence the appellant is intending to introduce was readily available to the appellant at the time of trial as the witnesses the appellant seeks to call are members of his household and a neighbor. Furthermore, the appellant who was represented during the trial never sought to call the said witnesses.

16. Further that the appellant was well aware of the charges he was facing therefore, application is a sham intended fill gaps in his case which should not be tolerated by the court. Further the applicant has not indicated at what point he discovered the evidence he now seeks to introduce.

17. The respondent submits that the intended evidence will not have impact on this appeal but it seeks to discredit the evidence given by Pw 2 on account that the appellant and Pw 2 had marital issues as shown by evidence adduced by DW 2, DW4 and Dw5.

18. In conclusion the respondents submits that appellant was supplied with evidence prosecution intended to adduce and given sufficient time to prepare and had an advocate on record. That the intended additional evidence is an afterthought and not credible; and urged this court to dismiss this application

Analysis And Determination 19. I have considered averments and submissions herein and wish to consider whether the application has met threshold for admission of additional evidence in this matter.

20. Section 358 of the CPC allows admission of additional evidence on appeal as follows:“1)In dealing with an appeal from a subordinate court, the High Court, if it thinks additional evidence is necessary, shall record its reasons, and may either take such evidence itself or direct it to be taken by a subordinate court;2)When the additional evidence is taken by a subordinate court, that court shall certify the evidence to the High Court, which shall thereupon proceed to dispose of the appeal.”

21. The applicable principles regarding the admission of additional evidence were stated by the Supreme Court in Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed & 3 others [2018] eKLR as follows:“(79)Taking into account the practice of various jurisdictions outlined above, which are of persuasive value, the elaborate submissions by counsel, our own experience in electoral litigation disputes and the law, we conclude that we can, in exceptional circumstances and on a case by case basis, exercise our discretion and call for and allow additional evidence to be adduced before us. We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:(a)the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;(b)it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;(c)it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;(d)Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;(e)the evidence must be credible in the sense that it is capable of belief;(f)the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;(g)whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;(h)where the additional evidence discloses a strong prima facie case of willful deception of the Court;(i)The court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The court must find the further evidence needful.(j)A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case. (k) The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.[80] We must stress here that this court even with the Application of the above-stated principles will only allow additional evidence on a case-by-case basis and even then, sparingly with abundant caution.”

22. Further in the case of The Administrator, HH The Aga Khan Platinum Jubilee Hospital v Munyambu [1985] KLR 127 the Court of Appeal expressed the circumstances under which additional evidence can be adduced as follows:“In exercising its discretion to grant leave to adduce additional evidence under rule 29 (1) (b) of the Court of Appeal Rules, the Court of Appeal will generally give such leave if the evidence sought to be adduced could not, with reasonable diligence, have been obtained for use at the trial, if it will probably have an important influence on the result of the appeal, and is apparently credible though it need not be incontrovertible. Such evidence will be admitted if some assumption basic to both sides has been clearly falsified by subsequent events and where to refuse the application would affront common sense or a sense of justice.”

23. In summary therefore, for the Court to allow an appellant to adduce additional evidence, the appellant must establish that the evidence could not have been obtained with reasonable diligence during the trial; that the evidence is directly relevant to the matter and may influence the outcome of the appeal; and that the evidence sought to be adduced is credible.

24. As to whether the additional evidence sought to be adduced, was available, could easily be procured and within his knowledge, the Applicant states that during the trial, he was unable to procure the attendance of crucial and credible witnesses who would have testified during the hearing because some of them were still students in school and some feared to testify for being implicated.

25. The applicant avers that some of the witnesses were being covered by Pw 1 and Pw 2 who did not want real culprits of the sexual assault and/or defilement of the deceased to be pointed out. That additional evidence shall disclose the names of the real culprits and also the truth as it is and was at the time before the trial of the appellant/applicant.

26. The appellant/applicant avers that at the time of trial he was unable to avail certain witnesses to testify in his favour because he could not contact them due to incarceration and through advise of his Advocate he has filed the present application to seek leave to adduce additional evidence by witnesses who were prevented by his wife RK and RK who he termed initiated and masterminded the case.

27. The appellant/applicant further avers that the minor girl stayed in his home for many years and he took care of her without any problem, that he came to learn of the defilement after the girl fell ill and was taken to children’s home and people came accusing him.

28. That the applicant will be relying on the statements of BKK a son to the appellant and whose evidence as filed in court is to discredit the evidence of two prosecution witnesses one RK and RK. That according to him, the two witnesses’ evidence was meant to fix his father for the reason that he had moved from home and went to live at Kabarnet town; that the sons of RK are the real culprits in the case.

29. That the applicant wishes to also call TKK who is also his son and a former student of [Particulars Withheld] Secondary School; that according to his statement which has been filed in court, he states that he and his other siblings were not aware that their father had been charged in court with this case because he and his brother were in school at the time. He alleges in his statement that the minor was not defiled by his father but by several boys whom he knew namely KK and who also alleged to have told him of one Allan Chepkor. He proceeds in his statement to discredit the evidence of their mother and RK.

30. The appellant from the statements supplied in court seeks leave to further bring one KK who is his mother who states that that the girl who died was brought to the home of the Appellant because she was sick and was not properly treated at her home by her parents; that the wife to his son used to mistreat the girl despite several warnings from her; that the abusers of the deceased were many boys in the village one of them being KK the son to RK who was one of the prosecution witnesses and another boy namely Francis ;and discredits the evidence of the appellants wife and RK; she maintains that his son stayed in Kabarnet most of the time and could come home over the weekends.

31. And proposed last witness is Ezekiel Kenda Chepkuto a neighbor to appellant whom he has known for several years. He discredits the evidence of RK and RK and supports the fact that the minor was defiled by boys from around her home.

32. There is no doubt that this court has discretion to allow additional evidence; however, the discretion has to be exercised sparingly. This position was held in the case of Samuel Kungu Kamau v Republic [2015] eKLR where the court stated as follows:-“It has been said time and again that the unfettered power of the court to receive additional evidence should always be used sparingly and only where it is shown that the evidence is fresh and would make a significant impact in the determination of the appeal.”

33. In my view the statements by the proposed witnesses are intended to aid the applicant in his appeal. I doubt if the witnesses were not aware that the appellant had been charged. Record show that the appellant first appeared in court on the 23/08/21 and the appellant convicted on 11/01/2022; the matter was pending for a period of about 5 months.

34. From averments herein, all the witnesses the appellant is seeking to avail were readily available to testify during trial considering that three of them were his closest relatives and one a neighbor.

35. From the foregoing, there is no doubt that the proposed evidence could have been obtained with reasonable diligence for use at the trial. In my view allowing parties to create evidence after a trial with a view to influencing the outcome of the appeal will result in the mockery of the criminal justice system. The approach taken by the applicant should not be entertained. There is no evidence that has come to light at this stage that can affect the outcome of the appeal. I see no merit in the application herein.

Final Orders: - 36. The application dated February 24, 2023 is hereby dismissed

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KABARNETTHIS 29TH DAY OF JUNE 2023. …………………………………RACHEL NGETICHJUDGEIn the presence of:Mr. Kemboi - Court Assistant.Ms. Ratemo for state.Mr. Miyienda for Appellant/ApplicantAccused present.