[2025] KEHC 7938 (KLR)

[2025] KEHC 7938 (KLR)

The court found that the affidavit sought to be admitted was not fresh evidence as it was available to the defence before the conclusion of the trial and could have been introduced through proper procedural channels, such as recalling the complainant for live testimony. The Applicant failed to demonstrate that the...

Source-derived case information.

Citation
[2025] KEHC 7938 (KLR)
Parties
Appellant: Nicolas Owuor; Respondent: Republic
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
30 April 2025
Case Number
Criminal Appeal E120 of 2023
Procedural Posture
Criminal Appeal / Ruling on Application to Admit Additional Evidence Pending Appeal
Outcome
application dismissed
Judges
AB Mwamuye
Legal Topics
Admission of Additional Evidence, Fresh Evidence on Appeal, Right to Fair Trial, Sexual Offences, Recantation of Testimony
Source Language
english
Criminal Law Admission of Additional Evidence Fresh Evidence on Appeal Right to Fair Trial Sexual Offences Recantation of Testimony

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Summary, issues, holding and outcome

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Parties

Nicolas Owuor

Appellant

Republic

Respondent

Procedural Posture

Criminal Appeal / Ruling on Application to Admit Additional Evidence Pending Appeal

Legal Issues

  1. 1 Whether the affidavit of IA dated 30th December 2022 constitutes fresh or new evidence not available at the time of trial and meets the threshold under Section 358 of the Criminal Procedure Code.
  2. 2 Whether the Appellant’s right to a fair trial under Article 50(2)(k) of the Constitution was unjustifiably limited by the trial court’s refusal to admit the affidavit.

Ratio Decidendi

The court found that the affidavit sought to be admitted was not fresh evidence as it was available to the defence before the conclusion of the trial and could have been introduced through proper procedural channels, such as recalling the complainant for live testimony. The Applicant failed to demonstrate that the evidence was unavailable at trial or that its exclusion constituted a wrongful denial of a fair trial. The court emphasized that the discretion to admit additional evidence on appeal must be exercised sparingly and only where the evidence is necessary, credible, and outcome-determinative. The affidavit, being a post-conviction recantation not subjected to cross-examination,...

Court Disposition

application dismissed

Orders

  • The application dated 17th October 2024 is dismissed for lack of merit.
  • There will be no order as to costs.