https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6852

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL APPEAL NO. E030 OF 2025** **EDWIN MUTANDA OTWONA…………………………………….APPELLANT/APPLICANT** **VERSUS** **REPUBLIC………………………………………………………………………….RESPONDENT** **(Being an Appeal from the Judgment/Decision of the Hon J.J Masiga -PM Chief Magistrates Court at Kakamega delivered on 3rd March, 2025 in CMCR E1894 of 2023)** **RULING** 1. Before this Court is the Notice of Motion dated 8th September 2025 brought by the Appellant/Applicant, Edwin Mutanda Otwona, seeking leave to adduce additional evidence on appeal. 2. The application is expressed to be brought pursuant to Order 42 Rule 27 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of the law. 3. The Applicant seeks orders that: 4. This Court be pleased to grant leave to adduce and file additional evidence comprising medical documents, land transaction documents, succession documents and land dispute related documents; and 5. Costs be in the cause. 6. The application is supported by the grounds on its face and the Supporting Affidavit sworn by the Applicant. 7. The Applicant deposes that he is dissatisfied with the judgment of the subordinate court delivered on 3rd March 2025 in Kakamega CM Criminal Case No. E1894 of 2023 and has lodged the present appeal. He contends that the intended additional evidence demonstrates that the dispute between himself and the complainant arises from a land boundary and inheritance dispute involving his mother-in-law and one Vincent Makomere, whom he alleges has an interest in the disputed land. 8. The Applicant further contends that the evidence sought to be introduced is directly relevant to the issues on appeal, is credible, and would materially affect the determination of the appeal. 9. The Respondent opposed the application. **Issues for Determination** 1. The issue for determination is whether the Applicant has satisfied the legal threshold for admission of additional evidence at the appellate stage. **Analysis and determination.** 1. The power of an appellate court to admit additional evidence is discretionary and must be exercised sparingly and only in exceptional circumstances. 2. Although the present application invokes Order 42 Rule 27 of the Civil Procedure Rules, this being a criminal appeal, the applicable principles are those developed under criminal appellate jurisprudence and Article 50 of the Constitution. 3. The guiding principles on admission of additional evidence on appeal were comprehensively set out by the Supreme Court in **Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed & 3 Others [2018] eKLR** where the Court stated that additional evidence: 4. must be directly relevant to the matter before the Court; 5. must be such that, if given, it would influence or impact upon the result of the verdict; 6. could not have been obtained with reasonable diligence for use at the trial; 7. should not be utilized to fill gaps in evidence or patch up weak points in a case; and 8. must be credible and capable of belief. 9. The Supreme Court further emphasized that the Court must exercise caution so as not to prejudice the opposite party or reopen litigation unnecessarily. 10. Similarly, in **Elgood v Regina [1968] EA 274*,*** the former East African Court of Appeal held that additional evidence on appeal should only be admitted where: 11. It was unavailable at the trial despite exercise of due diligence; 12. It is relevant to the issues before the Court; and 13. It is likely to have an important influence on the result of the case, although it need not be decisive. 14. The Court of Appeal in **Wanje v Saikwa [1984] KLR 275** further held that additional evidence should not be admitted merely for the purpose of enabling a party to make out a fresh case or to repair omissions in the evidence tendered before the trial court. 15. I have carefully considered the Applicant’s motion and affidavit. 16. The Applicant seeks to introduce medical records, land transaction documents, succession documents and land dispute materials to demonstrate that the criminal proceedings arose from a family land dispute and alleged inheritance disagreements. 17. However, the Applicant has not demonstrated why the said documents were not produced during the trial before the subordinate court, that the documents were unavailable despite exercise of due diligence; or and that the trial court denied him an opportunity to produce them. 18. The Applicant merely states that the documents are relevant to the appeal. Relevance alone is insufficient. 19. An appellate court cannot admit additional evidence merely because a party has discovered a better way of presenting his case after conviction. 20. Further, the Court notes that the intended evidence largely relates to collateral disputes concerning land ownership, succession and family disagreements. Whether or not such disputes existed does not automatically negate criminal liability unless the evidence directly affects the ingredients of the offence for which the Applicant was convicted. 21. The Applicant has also failed to demonstrate with precision how the proposed documents would materially alter the findings of the trial court. 22. **In Republic v Ali Babitu Kololo [2017] eKLR,** the Court observed that additional evidence should not be admitted where its purpose is merely to strengthen the defence case after trial or introduce matters that ought to have been canvassed before the trial court. 23. Further, **in Samuel Kungu Kamau v Republic [2015] eKLR,** the High Court declined to admit additional evidence where the applicant failed to establish that the evidence was unavailable during trial despite due diligence. 24. This Court is therefore not persuaded that the Applicant has met the threshold for admission of additional evidence at the appellate stage. 25. Accordingly, the Notice of Motion dated 8th September 2025 lacks merit and is hereby dismissed. 26. The appeal shall proceed on the basis of the record already filed before High Court 3, presided by Judge Dickson Onyango . 27. Mention 22.6.2026 for further directions on the Appeal. 28. Right of Appeal 14 days. 29. It is so ordered. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 20TH DAY OF MAY, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Angong’a/Velma Mr. Matete for the Appellant present online. Ms. Kiveu for the ODPP present online.