https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12344

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **CRIMINAL APPEAL NO. E006 OF 2025** PETER MUGENDI NGUU……….APPELLANT/APPLICANT VERSUS REPUBLIC…………………………………….RESPONDENT **RULING** 1. This ruling is in respect to the Application dated 22nd October 2025 filed by the Appellant Peter Mugendi Nguu seeking to produce additional evidence on appeal. 2. The Appellant/Applicant was charged with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. The particulars of the offence were on the 24th day of December 2023 at around 10.00hrs at Kanjoro location in Tharaka North Sub-County within Tharaka Nithi County, he intentionally caused his penis to penetrate the vagina of L. N.M, a child aged 16 years. 3. The Applicant also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. 4. At the close of the trial, the Applicant was convicted by Hon. Julius Gacheru (R.M) vide judgement dated 17th November 2024 and sentenced to serve 15 years imprisonment. 5. The Applicant filed a home-made Petition of appeal dated 25th March 2025. When the Appeal came up for directions on 23rd October 2025, Mr. Maina appeared for the Appellant and sought leave to amend the Petition of appeal. Counsel also stated that they had filed an Application seeking leave of the court to produce additional evidence on appeal. 6. The Application dated 23rd October 2025 under Section 358 of the Criminal Procedure Code. It seeks the following orders:- 7. That this honourable court be pleased to recall the complainant, Lilian Mwiti Nkatha, together with her sister, Caroline Nyawira, for purposes of proper identification. 8. That the Appellant/Applicant be granted leave to call a witness or witnesses- including but not limited to the area chief or sub-chief who can properly identify the two persons whose identification is in issue. 9. The Applicant identified the following issues for determination:- 10. Whether the said application is opposed. 11. Whether the interests of justice require the recalling of the complainant and her sister for purposes of proper identification, and whether the Appellant should be permitted to call additional witnesses on the same issue. 12. Contrary to the Applicant’s ascertain that the Application was unopposed, the Respondents, with leave of the court, filed submission dated 16th February 2026 in opposition. The Respondent identified one issue for determination being whether the Applicant had met the legal threshold for taking of additional evidence under section 358 of the Criminal Procedure Code. **Submissions** 1. The Applicant’s contention is that the identity and consequently the age of the complainant was not resolved by the trial court. That the actual complainant one Caroline Nyawira was an adult but assumed the identity of her minor sister Lilian Mwiti when testifying in court. That the court therefore founded proof of age on improper identification of the complainant. 2. The Applicant submitted that he consistently raised the issue at the trial that the person testifying before the court was one Caroline Nyawira who used Lilian Nkatha’s documents. That was a fundamental issue going to the root of the integrity of the proceedings. He urged that recalling the particular witness and her sister was the only way to conclusively resolve the identification issue. 3. The Applicant relied on the following authorities:- 4. **Mboya v Republic (criminal Appeal 180 of 2023),** where the High Court recalled witnesses at the appeal stage for clarity and fairness, holding that section 150 of Criminal Procedure Code imposes a duty where justice demands it. 5. **Ondira and another v Republic (Criminal Appeal 111 of 2023),** wherethe court emphasized that recalling witnesses is part of protecting Article 50 fair trial rights, and; 6. **DI vs. Republic (2020) –** Court held that if proposed testimony is essential to a just decision, then the court must summon identified the witness. 7. The Respondent vehemently opposed the Application. They submitted that the Application was misconceived, legally untenable, and an abuse of the court process. 8. The Respondent submitted that whereas section 358 of the Criminal Procedure Code grants the high court power to take additional evidence, that power was circumscribed by the consideration that:- 9. the evidence was not available at the trial despite the diligence. 10. was relevant and credible. 11. would likely influence the result of the case. 12. It was the Respondent’s submission that the identity of the complainant was dealt with at the trial and that the Applicant was now seeking to use appellate proceedings to repair evidentiary deficiencies. That the Applicant had the opportunity to call during trial the witnesses he now wishes to call on appeal. **Analysis and determination** 1. I discern two issues for my determination as follows:- 2. Whether the Applicant has satisfied the legal threshold for the taking of evidence on appeal and 3. Whether PW1 should be recalled and two new witnesses called. 4. **Whether the Applicant has satisfied the legal threshold for the taking of evidence on appeal** 5. Section 358 of the Criminal Procedure Code provides:- **(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.** **(3) Unless the High Court otherwise directs, the accused or his advocate shall be present when the additional evidence is taken.** **(4) Evidence taken in pursuance of this section shall be taken as if it were evidence taken at a trial before a subordinate court.** 17. Section 150 of the Criminal Procedure Code grants the court power to summon or call any person as a witness, or recall and re-examine any person already examined, it the evidence appears essential in the just decision of the case. 18. Section 146 (4) of the Evidence Act further allows recall of witnesses for further examination and re-examination whenever the interest of justice require. 19. The applicable principles in an Application of this nature are that witnesses should not be called to shore up party’s case; it should be evidence that was not available despite the diligence of a party; and only where he interest of justice demands. See **Elgood .v. Republic [1968] EA 274**. See **also Wanje & Others .v. Saikwa & Others [1984] KLR 275.** 20. In this case the trial was concluded and the Applicant was convicted and sentenced. The Applicant has filed an appeal which is pending but wishes that this court in its appellate jurisdiction also take new evidence on appeal. 21. As stated above, the high court has power under section 358 to take further evidence or direct a trial court below to take such evidence. The power is however discretional and should not be granted to allow a party fill the gaps in their case. 22. The Applicant has submitted that the identity of the complainant or victim was not ascertained by the trial court and remained in issue throughout the trial. That the person who appeared before the trial court was an adult Caroline Nyawira used the birth certificate of her younger sister Lilian Mwiti Nkatha to purport that she was underage. The Applicant states that he now wishes to recall PW1 who was the complainant, her elder sister Caroline Nyawira and their local chief or assistant chief to prove that it was the elder sister Caroline Nyawira, an adult who purported to have been defiled. 23. In opposing the Application, the Respondent submitted that the Applicant had an opportunity during trial to cross-examine the PW1 or even recall her. That he had the opportunity to call any other prosecution’s witnesses in his defence but failed to do so. 24. I have perused the trial record and noted that PW1 testified and was cross-examined as were all the other witnesses. Placed on his defence, the Applicant told the court that he would give sworn testimony and would not call any witnesses. 25. The Applicant has not shown in this Application why he did not call the witnesses he now desires to call. As observed by both parties, the issue of identity of the victim was a live issue in the trial and the trial court made a finding on it. That finding ought to be one of the grounds of appeal. 26. I am not persuaded to exercise discretion to take new evidence in this appellate stage. The Applicant has the opportunity to attack the findings of the trial court when he prosecutes his appeal. 27. The Application is dismissed. Orders accordingly. **Ruling delivered, dated and signed at Chuka this 28th day of July, 2026.** **..........................** **R. LAGAT-KORIR** **JUDGE** **Ruling delivered in the presence of the Applicant/Appellant present acting in person and Ms Rukunga for the Respondent. Muriuki (Court Assistant).**