Kenya Judgment

High Court · High Court at Mombasa

MWALIMU KARISA v REPUBLIC [2003] KEHC 410 (KLR)

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Source document

01

Holding and result

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.

02

Material facts

Parties

Mwalimu Karisa

Appellant

Republic

Respondent Counsel: State Counsel

03

Procedural history

  1. Posture

    Criminal Appeal / Application for Leave to Adduce Additional Evidence Pending Appeal

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant seeks leave to adduce as additional evidence the entry in the Bomba Police Station Occurrence Book (O.B) dated 20/1/2000, relating to the robbery for which he was convicted. He argues that this evidence is material to his appeal and that he should be given a fair opportunity to present it, especially as he conducted his own defence at trial and may not have appreciated its significance at the time.
Respondent
The State Counsel opposes the application on the ground that the appellant had the opportunity to adduce the evidence during the trial but chose not to. The respondent contends that no sufficient reason has been given for the failure to present the evidence at the trial stage.

05

Court’s reasoning

  1. 01

    Section 358(2) of the Criminal Procedure Code (Cap 75)

    An appellate court may allow additional evidence to be adduced if it is in the interests of justice, particularly where the appellant was unrepresented and the evidence is material.

06

Ratio, limits and disposition

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.

Obiter and limits

  • The necessity of calling such evidence may not have occurred to the appellant at the time as he conducted his own defence.

Court disposition

Application for leave to adduce additional evidence allowed.

  • 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.

Source and reliance status

High Court

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Judgment text

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Source document

High Court

Judgment

[2003] KEHC 410 (KLR)

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

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Section 358(2) Criminal Procedure Code (Cap 75)

Legislation

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