[2009] KEHC 741 (KLR)
The court granted the appellants leave to amend their petitions of appeal, as this is permissible under the Criminal Procedure Code and was not opposed. However, the request to produce the police occurrence book (O.B) as further evidence was rejected. The court found that the trial magistrate had, in fact, granted...
Source-derived case information.
- Citation
- [2009] KEHC 741 (KLR)
- Parties
- Appellant: Simon Ochulu Namuya; Appellant: James Emakai Manman; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 91 of 2007
- Procedural Posture
- Criminal Appeal / Interlocutory Application Ruling
- Outcome
- Application partly allowed and partly dismissed.
- Legal Topics
- Adducing Additional Evidence, Amendment of Appeal Grounds, Waiver of Evidence Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Ochulu Namuya
Appellant
James Emakai Manman
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Interlocutory Application Ruling
Legal Issues
- 1 Whether the appellants should be granted leave to amend their petitions of appeal by adducing more grounds of appeal.
- 2 Whether the court should allow the production of the police occurrence book (O.B) as further evidence at the appeal stage.
Ratio Decidendi
The court granted the appellants leave to amend their petitions of appeal, as this is permissible under the Criminal Procedure Code and was not opposed. However, the request to produce the police occurrence book (O.B) as further evidence was rejected. The court found that the trial magistrate had, in fact, granted the appellants' request to have the O.B produced during trial, but the appellants failed to persist in its production, effectively waiving their right to rely on it. The court further held that the appellants had not demonstrated that the production of the O.B at the appellate stage was necessary or would add value to their appeals. The application for further evidence was...
Court Disposition
Application partly allowed and partly dismissed.
Orders
- Leave to amend the petitions of appeal by adducing more grounds of appeal is granted.
- The prayer for production of the police occurrence book (O.B) as further evidence is rejected.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
Criminal Appeal 91 of 2007
SIMON OCHULU NAMUYA………………………………………1st APPELLANT
JAMES EMAKAI MANMAN……………………………………..2nd APPELLANT
VERSUS
REPUBLIC ………………………………………………….…………………… RESPONDENT
[From original conviction and sentence in Criminal Case number 425 of 2006 of the Chief Magistrate’s Court at Kisumu]
CORAM
Mwera, Karanja J. J.
Musau for State
Court Clerk – George/Laban
Appellant in person
RULING
The application filed by both appellants on the 14th February 2009 is two pronged. It is firstly for leave to adduce more grounds of appeal and secondly for the production of a police occurrence book (O.B) during the hearing of the appeals.
The leave to adduce more grounds of appeal is in essence leave to amend the petitions of appeal and this may be granted without much ado under the proviso to Section 350 (2) of the Criminal Procedure Code. We, accordingly, grant the first prayer.
Regarding the second prayer, Section 358 (1) of the Criminal Procedure Code grants this court the power to take further evidence. It provides that:-
“In dealing with an appeal from a subordinate court, the High Court if it thinks additional evidence is necessary, shall record its reason, and may either take such evidence itself or direct it to be taken by a subordinate court”.
The Learned Senior Principal State Counsel, Mr. Musau, is of the view that the prayer for further evidence is not merited as it is not shown even by way of the supporting affidavit that the intended further evidence would lead to this court arriving at a different verdict.
The first appellant contended that their request for the occurrence book (O.B) at this stage is prompted by the refusal of the learned trial magistrate to have it produced during the trial.
However, the lower court record does not bear out the appellants. It shows that the trial magistrate granted the appellants’ request to have the occurrence book (O.B.) dated 31st may 2006 to 6th June 2006 produced in court. The request was granted on several occasions and at one point the trial magistrate ordered that the OCS Kondele Police Station appear in court and produce the said occurrence book (O.B). A-long the way, the occurrence book was forgotten and the appellants did not persist in having it produced. This was an indication that they waived their request and opted to proceed with the trial without the occurrence book.
The waiver meant that the appellants no longer required the occurrence book. They deemed that its production was no longer necessary. Therefore, their current request for its production on appeal is, in our view, an afterthought.
In any event, they have not shown as observed by the learned State Counsel, that the production of the occurrence book will add value to their appeals.
The second prayer must in the circumstances be rejected and we hereby reject it.
Those are our orders.
Dated, signed and delivered at Kisumu this 29th day of October 2009
J. W. MWERA J. R. KARANJA
JUDGE JUDGE
JRK/aao