[2021] KEHC 5495 (KLR)
The court allowed the application to introduce new evidence on appeal because the application was unopposed, and the respondent would still have the opportunity to comment on or challenge the new evidence. The court found that the interests of justice would be served by permitting the applicant to file a...
Source-derived case information.
- Citation
- [2021] KEHC 5495 (KLR)
- Parties
- Applicant: Republic; Respondent: Abraham Birundu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 46 of 2018
- Procedural Posture
- Criminal Appeal / Ruling on Application to Adduce Additional Evidence on Appeal
- Outcome
- application allowed
- Judges
- HK Chemitei
- Legal Topics
- Adducing Fresh Evidence on Appeal, Supplementary Record of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Abraham Birundu
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application to Adduce Additional Evidence on Appeal
Legal Issues
- 1 Whether the applicant should be allowed to introduce new evidence at the appellate stage.
- 2 Whether the respondent will be prejudiced by the introduction of the new evidence.
Ratio Decidendi
The court allowed the application to introduce new evidence on appeal because the application was unopposed, and the respondent would still have the opportunity to comment on or challenge the new evidence. The court found that the interests of justice would be served by permitting the applicant to file a supplementary record of appeal containing the fresh evidence, with the respondent to be duly served and given a chance to respond. The court relied on the authority cited by the applicant and exercised its discretion in favour of allowing the application, noting the absence of prejudice to the respondent.
Court Disposition
application allowed
Orders
- The applicant is granted 14 days to file a supplementary record of appeal and serve the respondent.
- In default, the appeal shall proceed appropriately.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 46 OF 2018
REPUBLIC...............................APPLICANT
VERSUS
ABRAHAM BIRUNDU........RESPONDENT
RULING
1. The Notice of Motion by the applicant dated 1st of March 2021 prays for orders that this appeal be suspended so as to allow the applicant introduce new evidence before the determination of the same. The fresh evidence as per the supporting affidavit of Odero Vena, the learned state counsel, is an affidavit of the complainant which is intended to shed more light on the matter.
2. According to her the same shall assist the court in determining the appeal appropriately and in any case the respondent shall have the chance to interrogate it. The application has not been opposed despite the counsel for the respondent asking for more time to put in his client’s response.
3. The court ordered the parties to file written submissions which apparently the applicant alone complied. The court has perused the authority of MOHAMED ABDI MOHAMED VS. AHMED ABDULLAHI MOHAMED & 3 OTHERS SC PETITION NO 7 OF 2018 (2018) eKLRrelied on by the applicant.
4. In view of the fact that the application is not opposed, and the fact that the respondent shall still have the chance to comment on the same, in any event, the application is hereby allowed as prayed. The applicant is granted 14 days to file supplementary record of appeal and serve the respondent and in default the appeal shall proceed appropriately.
DATE SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 8TH DAY OF JULY 2021
H K CHEMITEI
JUDGE