https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10912

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CRIMINAL APPEAL NO. E043 OF 2024** **JAMES IRUNGU………..……………….………………...APPLICANT** **-VERSUS-** **REPUBLIC……………………………………….…………RESPONDENT** **RULING** **Introduction** 1. Before this Court for determination is the Notice of Motion dated 17th February 2025 brought by the Appellant pursuant to Articles 25(c), 47, 48 and 50 of the Constitution, Sections 358 and 359 of the Criminal Procedure Code and all other enabling provisions of the law. 2. The Applicant seeks leave of this Court to adduce additional evidence in this appeal, namely that the judgment delivered on 20th February 2025 by the Small Claims Court at Thika in Small Claims Case No. E1314 of 2023 between the parties herein. 3. The Motion is premised on the grounds appearing on its face and is supported by the affidavit sworn by the Applicant. The Applicant contends that the impugned judgment was delivered after the conclusion of the criminal proceedings before the trial court and was therefore unavailable at the time of the trial. He avers that the judgment is directly relevant to the issues raised in the appeal and will assist this Court in arriving at a just determination of the appeal. **Applicant’s case and submissions** 1. The Applicant submits that following his conviction in Kiambu Chief Magistrate's Traffic Case No. E1163 of 2023, he lodged the present appeal challenging both conviction and sentence. Thereafter, the Small Claims Court delivered judgment in proceedings arising from the same road traffic accident that forms the subject matter of this appeal. 2. It is the Applicant's contention that the Small Claims Court judgment constitutes new evidence which was unavailable during the trial before the subordinate court because it had not yet been delivered. 3. He submits that the proposed evidence satisfies the requirements for admission of additional evidence on appeal as it is relevant, credible and capable of assisting this Court in determining the issues raised in the appeal. It is further submitted that the Applicant acted diligently and filed the present application immediately after the delivery of the Small Claims Court judgment. Counsel argues that the Applicant cannot be faulted for failing to produce evidence that did not exist at the time the trial was concluded. 4. Additionally, that no prejudice will be occasioned to the Respondent if leave is granted as the Respondent will have an opportunity to respond to the additional evidence during the hearing of the appeal. **Respondent’s case** 1. The Respondent did not file any replying affidavit or grounds of opposition to the application. ## Issue for Determination 1. The sole issue arising for determination is whether the Applicant has satisfied the legal threshold for admission of additional evidence on appeal. **Analysis and determination** 1. The jurisdiction of this Court to admit additional evidence in criminal appeals is donated by Section 358(1) of the Criminal Procedure Code, which provides- **"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."** 1. The power conferred by Section 358 is discretionary and must be exercised judiciously. It is not intended to afford a party an opportunity to repair weaknesses in his case or to fill evidentiary gaps after the conclusion of a trial. 2. In **Elgood v Regina [1968] EA 274**, the former Court of Appeal for East Africa held that although an Appellate Court has power to receive additional evidence, that power should be exercised with caution and only where the evidence sought to be adduced could not, with reasonable diligence, have been obtained at the trial, is relevant to the issues before the court and is capable of influencing the determination of the appeal. More recently, the Supreme Court in **Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR** summarized the applicable principles governing the admission of additional evidence on appeal. Among those principles are that the proposed evidence must be directly relevant to the matter before the court, credible, capable of influencing the outcome of the case, unavailable at the time of trial despite the exercise of reasonable diligence and not intended merely to patch up weak points in a party's case. 3. Although the Supreme Court decision arose in civil proceedings, the principles articulated therein are of general application and complement the requirements under section 358 of the Criminal Procedure Code. 4. **In this instance, t**he Applicant seeks leave to introduce the judgment delivered by the Small Claims Court on 20th February 2025. It is not disputed that the impugned criminal judgment had already been delivered before the Small Claims Court rendered its decision. Consequently, the proposed evidence was not in existence during the trial before the subordinate court. 5. In those circumstances, the Court is satisfied that the Applicant could not, through the exercise of reasonable diligence, have produced the judgment during the trial. The requirement relating to availability of the evidence is therefore satisfied. 6. The proposed evidence arises from proceedings between the same parties and relates to the same road traffic accident which forms the basis of the criminal proceedings now on appeal. On that account alone, the Court is satisfied that the evidence is relevant to the issues arising in the appeal. 7. It is important to emphasize that relevance is not synonymous with admissibility on the merits. Whether the findings made by the Small Claims Court ultimately have any evidential or persuasive value in determining the criminal appeal is a matter that will fall for consideration during the hearing of the appeal. At this stage, the Court is only concerned with whether the proposed evidence satisfies the threshold for admission under section 358 of the Criminal Procedure Code. 8. I am also satisfied that the present application is not an attempt to fill gaps in the Applicant's case. The Applicant does not seek to introduce evidence that was available but omitted during the trial. Rather, he seeks to rely upon a judgment delivered several months after the conclusion of the criminal proceedings. It cannot therefore be said that the Applicant lacked diligence or deliberately withheld the evidence. 9. The Respondent has not opposed the application and no prejudice has been demonstrated that cannot adequately be addressed during the hearing of the Appeal. The Respondent will remain at liberty to challenge both the admissibility and the evidential weight of the additional evidence during the hearing of the appeal. 10. Ultimately, the question before this Court is not whether the Small Claims Court judgment establishes the Applicant's innocence or otherwise. Those are issues reserved for the determination of the substantive appeal. The only question presently before the Court is whether the proposed evidence satisfies the statutory threshold for admission. 11. Having considered the Notice of Motion, the supporting affidavit, the submissions by counsel, section 358 of the Criminal Procedure Code and the applicable authorities, I am satisfied that the Applicant has established sufficient grounds to warrant the exercise of this Court’s discretion in his favour. **Disposition** 1. Accordingly, the Notice of Motion dated 17th February 2025 is allowed. 2. Leave is hereby granted to the Appellant to adduce, as additional evidence in this appeal, the judgment delivered on 20th February 2025 in **Thika Small Claims Court Case No. E1314 of 2023**. The said Judgment shall be deemed duly admitted as part of the record of appeal. 3. The appeal shall be listed for directions on hearing as appropriate. **DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 17TH DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.** **KENNEDY KANDET** **JUDGE** **IN THE PRESENCE OF:** **KAGENDO HOLDING BRIEF FOR GITONGA FOR THE APPELLANT** **MS. MURIU FOR THE RESPONDENT** **COURT ASSISTANT: JAEL NOSIM**