[2022] KEHC 1171 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

CRIMINAL APPEAL NO. 27 OF 2018

SAMUEL MBURU KIBE.......................................................APPELLANT

VERSUS

REPUBLIC..........................................................................RESPONDENT

RULING

1. The appellant was adjudged guilty of incest contrary to section 20 (1) of the Sexual Offences Act. The complainant was his daughter, HWK [particulars withheld]who was then aged 17. He was sentenced to life imprisonment.

2. His appeal to the High Court is pending. He now seeks to adduce fresh evidence contained in a handwritten Kiswahili letter dated 26th April 2018 authored by the complainant.

3. The complainant, who is now an adult, deposes that she wrote the letter “freely on [her] own volition without any coercion” and that she is “remorseful over the lies she made” against the appellant in the lower court.

4. The substance of the letter and its intent is to retract the statements she made to the police and to renounce her evidence in the lower court.

5. Those matters are set out at length in the notice of motion dated 12th October 2021 and the affidavit of the appellant’s counsel of even date. Like I have stated, there is another affidavit by HNK sworn on 21st January 2022 confirming that she voluntarily authored the above letter.

6. The motion is contested by the Republic. There is a replying affidavit sworn by Ms.Atieno Otieno, Prosecution Counsel, on 7th March 2022. In a nutshell, she states that the letter does not amount to new evidence which was unavailable during the trial; and, that the complainant is belatedly trying to re-write her testimony. It was also submitted that the motion is an attempt to plug loopholes in the appellant’s defence.

7. On 8th March 2022, I heard submissions from learned counsel for the appellant and respondent.

8. I take the following view of the matter. The main appeal is pending. The appeal is against both the conviction and sentence. It would thus be prejudicial to make any observations on its merits. That will be the true province of the first appellate court.

9. Section 358 of the Criminal Procedure Code allows the appellate court to admit new evidence if “it thinks the additional evidence is necessary”.The legal principles were well stated in Elgood v Republic [1968] E.A. 274; Republic v Ali Babitu Kololo, Court of Appeal, Malindi, Criminal Appeal 8 of 2017 [2017] eKLR.

10. A key principle in all those cases is that the “evidence sought to be called must be evidence which was not available at the trial”.See also PMK v Republic, High Court, Murang’a, Criminal Appeal 30 of 2019 [2022] eKLR.

11. In the instant case, the complainant testified as PW1. Her evidence was pivotal in establishing the guilt of the appellant. But it was by no means the only evidence before the lower court. There were four other state witnesses as well as the lengthy statement by the appellant.

12. The complainant testified in the lower court on 21st February 2017. At the date of her evidence, the learned trial magistrate observed that she was over 18 years. The letter that is now sought to be introduced was written well after the judgment.

13. The complainant was not coerced to give her evidence. The text of her letter means that she deliberately lied or set up the appellant to cover her escapades with her boyfriend, DNN [particulars withheld]. The complainant is not a new witness as such. Her letter didnot exist during the trial. Like I have stated, it was authored after her father was convicted and sentenced. What she desires to do is to recant her evidence and aide the appeal.

14. This case can thus be distinguished from JWM & another v Attorney General & another, High Court, Machakos, Pet. 43 of 2019 [2020] eKLR. There, the complainant had been coerced by her mother to fix her husband for defilement. In ordering a retrial, Odunga J, found among other reasons, that the evidence of coercion was unknown at the time of the trial.

15. The facts here are more in tandem with M’Mukindia M’Menyi v Republic, High Court, Meru, Criminal Appeal 178 of 2019 [2020] eKLR. There the appellant sought to induct fresh medical evidence that he had undergone prostatectomy and was incapable of committing defilement. Gikonyo J, found that the evidence was always in possession of the appellant and he did not at any time seek to rely on that medical condition. The learned judge found that the only plausible explanation of the motion was “to make out a fresh case and improve the chances of his appeal”.The motion was dismissed.

16. In view of the pending appeal, the less I say about it the better. But I also find, obiter, that the complainant’s new posture would be a good ground to seek a re-trial under Article 50 (6) of the Constitution. However, that is premature because the appellant has not yet exhausted all his rights of appeal.

17. Having found that the letter dated 26th April 2018 was not evidence that was unavailableduring the trial; and, that the complainant is belatedly recanting her evidence, I am not satisfied that there are sufficient grounds to adduce fresh evidence or that the additional evidence is necessary in the appeal.

18. The upshot is that the appellant’s notice of motion dated 12th October 2021 is hereby dismissed.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 31ST DAY OF MARCH, 2022

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of-

Mr. Mwaniki for the appellant instructed by Mwaniki Warima & Company Advocates.

Ms. Muriu for the Republic instructed by the Office of the Director of Public Prosecutions.

Ms. Susan Waiganjo, Court Assistant.