[2003] KEHC 410 (KLR)
The court held that although the appellant did not provide reasons for failing to adduce the evidence at trial, the nature of the evidence sought to be introduced would not prejudice the respondent's case. Given that the appellant was unrepresented at trial and is facing a death sentence, the court found it fair and...
Source-derived case information.
- Citation
- [2003] KEHC 410 (KLR)
- Parties
- Appellant: Mwalimu Karisa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 280 of 2001
- Procedural Posture
- Criminal Appeal / Application for Leave to Adduce Additional Evidence Pending Appeal
- Outcome
- Application for leave to adduce additional evidence allowed.
- Judges
- LP Ouna
- Legal Topics
- Adducing Additional Evidence, Criminal Appeal Procedure, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwalimu Karisa
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 failure to adduce the evidence at trial precludes its admission at the appellate stage.
Ratio Decidendi
The court held that although the appellant did not provide reasons for failing to adduce the evidence at trial, the nature of the evidence sought to be introduced would not prejudice the respondent's case. Given that the appellant was unrepresented at trial and is facing a death sentence, the court found it fair and in the interests of justice to allow the application for additional evidence. The court exercised its discretion under Section 358(2) of the Criminal Procedure Code to permit the taking of such evidence, emphasizing the importance of ensuring a fair trial and appeal process, especially in capital cases.
Court Disposition
Application for leave to adduce additional evidence allowed.
Orders
- The application is allowed.
- The file to be placed before the Deputy Registrar for purposes of arranging for the taking of such evidence as provided for under Section 358(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 280 OF 2001
(Being an Appeal against Conviction and Sentence in Criminal Case No. 102 of 2000 of the Senior Resident Magistrate’s Court at Kilifi – P.M. Mutani)
MWALIMU KARISA ….………………………….… APPELLANT
- VERSUS –
REPUBLIC …………………………………………. RESPONDENT
R U L I N G
The Appellant has by Notice of Motion filed on 23rd March, 2003 applied for leave to adduce additional evidence.
The nature of the additional evidence is the entry in the Bomba police Station O.B of the 20/1/2000 concerning the report of the said robbery and for which the appellant was convicted. The State Counsel opposed the application and rightly so on ground that the appellant had the opportunity to adduce the said evidence during the trial but he choose not to. We have considered the nature of the evidence the appellant wishes to adduce and although we agree he has not given any reasons for failure to call for the same at the trial. We do not consider that such evidence if allowed at this stage would cause any prejudice to the Republic’s defence on the main appeal. The appellant has been sentenced to death and we consider it fair in the interest of justice to allow him the said chance. He had conducted his own defence at the trial and the necessity of calling such evidence may have not occurred to him at the time.
In the circumstances, the application is allowed. The file to be placed before the Deputy Registrar for purposes of arranging for the
taking of such evidence as provided for under Section 358 (2) of the Penal Code.
Dated and delivered at Mombasa this 10th June, 2003.
L.O. OUNA
JUDGE
P.M. TUTUI
COMMISSIONER OF ASSIZE