[2001] KECA 39 (KLR)
The Court found that the evidence sought to be adduced—the Occurrence Book entry—was available at the time of trial and thus did not meet the criteria for admission as additional evidence on appeal. The Court emphasized that the principles set out in Elgood v Regina require that such evidence must not have been...
Source-derived case information.
- Citation
- [2001] KECA 39 (KLR)
- Parties
- Appellant: James Imbwoyere Obowom; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 62 of 1993
- Procedural Posture
- Criminal Appeal / Application for Leave to Adduce Additional Evidence Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Adducing Additional Evidence, Appellate Procedure, Murder Conviction, Fresh Evidence on Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Imbwoyere Obowom
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Leave to Adduce Additional Evidence Pending Appeal
Legal Issues
- 1 Whether the appellant should be granted leave to adduce additional evidence on appeal.
- 2 Whether the Occurrence Book (O.B.) entry sought to be produced qualifies as fresh evidence under the applicable legal principles.
Ratio Decidendi
The Court found that the evidence sought to be adduced—the Occurrence Book entry—was available at the time of trial and thus did not meet the criteria for admission as additional evidence on appeal. The Court emphasized that the principles set out in Elgood v Regina require that such evidence must not have been available at trial, must be relevant, and must be credible. The appellant's counsel failed to demonstrate an understanding of these principles or to provide a substantive justification for the application. The Court concluded that the application was without merit and dismissed it accordingly.
Court Disposition
application dismissed
Orders
- The application for leave to adduce additional evidence is dismissed.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: OMOLO, O'KUBASU & KEIWUA, JJ.A.
CRIMINAL APPEAL (APPLICATION) NO. 62 OF 1993
JAMES IMBWOYERE OBOWOM ....................... APPELLANT
AND
REPUBLIC ............................................................ RESPONDENT
(Application for leave to take additional evidence from the judgment of the High Court of
Kenya at Nairobi (Khamoni J) dated 17th June, 1993
in
H.C.CR.C. NO. 35 OF 1992)
***************
RULING OF THE COURT
The appellant, James Imbwoyere Obowom, was convicted of murder contrary toSection 203as read with Section 204 of the Penal Code and sentenced to death. He has appealed to this Court but while his appeal is pending he took out a notice of a motion under rule 29 (2) of the Court of Appeal Ru lesseeking leave to adduce additional evidence during the hearing of the appeal. The evidence sought to be adduced relates to the production of the Occurrence Book (O.B.) of 13th August, 1991, from Kilimani Police Station.
The principle upon which an appellate court in a criminal case will exercise its discretion in deciding whether or not to allow additional evidence to be adduced for the purpose of the appeal were set out by the Court of Appeal for East Africa in the case of ELGOOD VS REGINA[1968] E.A. 274. It was held that the evidence sought to be called must be evidence which was not available at the trialand must be relevant to the issues. It must be evidence which is credible in the sense of being capable of belief. It was further held that it was only in very exceptional cases that the Court of Appeal will permit additional evidence to be adduced.
Mr Oira who argued this application on behalf of the applicant/appellant was not able to convince us that he really understood the principles set out in theElgoodcase. The O.B. which is sought to be produced as additional evidence was available during the trial of the appellant. We found it very difficult to understand Mr Oira's submission and when asked to explain the gist of his application, all he told us was that he had been instructed by his client to make this application.Well, counsel must take his client's instructions bearing in mind the relevant legal principles applicable in the circumstances of each case. It is not enough to come to Court and say "I have been instructed by my client". Indeed by the time Mr Oira concluded his submissions he appeared to have conceded that this application was absolutely unnecessary.
In view of the foregoing we are of the opinion that there is no merit in this application and it is accordingly dismissed.
Dated and delivered at Nairobi this 21st day of December, 2001.
R. S. C. OMOLO
-----------------------
JUDGE OF APPEAL
E. O. O'KUBASU
------------------------
JUDGE OF APPEAL
M. Ole KEIWUA
-------------------------
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR