[2006] KEHC 2027 (KLR)
The court held that applications to adduce additional evidence on appeal are governed by judicial discretion and must be supported by special circumstances. The correct procedure requires a formal application by Notice of Motion, supported by an affidavit explaining the reasons for not adducing the evidence at trial...
Source-derived case information.
- Citation
- [2006] KEHC 2027 (KLR)
- Parties
- Appellant: Omar Kalu Jefwa; Appellant: Mohamed Shali Bain; Appellant: Balozi Kitsao Katana; Appellant: Nuru Salim Omar; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 55 of 2005
- Procedural Posture
- Criminal Appeal / Application to Adduce Additional Evidence on Appeal
- Outcome
- Application deferred pending compliance with procedural requirements.
- Legal Topics
- Additional Evidence on Appeal, Judicial Discretion, Procedural Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omar Kalu Jefwa
Appellant
Mohamed Shali Bain
Appellant
Balozi Kitsao Katana
Appellant
Nuru Salim Omar
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application to Adduce Additional Evidence on Appeal
Legal Issues
- 1 Whether the appellants should be granted leave to adduce additional evidence on appeal under Section 358 of the Criminal Procedure Code.
- 2 What is the correct procedure for making an application to adduce additional evidence on appeal.
Ratio Decidendi
The court held that applications to adduce additional evidence on appeal are governed by judicial discretion and must be supported by special circumstances. The correct procedure requires a formal application by Notice of Motion, supported by an affidavit explaining the reasons for not adducing the evidence at trial and specifying the nature of the evidence. Since the appellants had not followed this procedure, the court ordered them to file a formal application within 14 days, with the respondent to reply within a further 14 days. The court thus enforced procedural compliance before considering the substantive merits of the application.
Court Disposition
Application deferred pending compliance with procedural requirements.
Orders
- The applicant shall file a formal application by Notice of Motion supported by affidavit within 14 days from the date of this ruling.
- The application shall be served on the Attorney General, who shall have 14 days from the date of service to respond.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI
Criminal Appeal 55 of 2005
1. OMAR KALU JEFWA & 3 OTHERS
2. MOHAMED SHALI BAIN
3. BALOZI KITSAO KATANA
4. NURU SALIM OMAR…………...........................……………………….APPELLANT
VERSUS
REPUBLIC………………….........................……………………………RESPONDENT
RULING
When this appeal came up for argument, learned counsel for the appellants made an application under Section 358 of the Criminal Procedure Code seeking to adduce additional evidence on appeal. The application was not opposed by the learned counsel for the respondent, whose only concern was the procedure used. He relied on the case of R V Kipkering Arap Koske, (1949) 16 EACA, 135,whose relevance seem to have been confined in many cases to what constitutes circumstantial evidence.
In the case the Court of Appeal for Eastern African held, inter alia, that an application to call additional evidence is not granted automatically. That it is a matter of judicial discretion and will only be granted where existence of special circumstances has been shown by the applicant. But more significantly, that case established that the correct procedure in making the application is for the applicant to show, by affidavit, why the evidence was not adduced at the trial and the nature of additional evidence sought to be adduced.
This means that a formal application by way of Notice of Motion supported by an affidavit sworn either by the applicant or his counsel is the vehicle for bringing such application. Without pre-empting the application, there are established parameters for the grant of such application.
It is ordered that the applicant files a formal application within 14 day from today’s date and serve the same on the Attorney General who has 14 days from the date of service to respond. Thereafter a hearing date to be taken at the registry.
Dated and delivered this 9th day of March 2006 at Malindi.
W.OUKO
JUDGE
9. 3.2006
Coram
W.Ouko, J
Mr.Shujaa for Mr. Abubakar
Mr.Ogoti for Respondent.
Three Appellant present.
Ruling delivered.
W.OUKO
JUDGE