https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7550

SVM v Republic (Criminal Appeal E061 of 2025) [2026] KEHC 7550 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7550 (KLR) Republic of Kenya In the High Court at Kitale Criminal Appeal E061 of 2025 RK Limo, J June 4, 2026 Between SVM Appellant and Republic Respondent Ruling 1.The appellant herein, SVM, has moved this court under the provisions of Article 50(2)(g) and Section 358(1) Criminal Procedure Code for the following prayers;i.That this court be pleased to order for admission of additional DNA evidence in this appeal.ii.That the DNA samples be collected from the appellant, the minor namely AWM for forensic analysis to determine paternity.iii.That DNA analysis be conducted by a qualified Government forensic laboratory or Government Chemist.iv.That the DNA results be filed and admitted in court as evidence. 2.The applicant has listed the following grounds in his application namely;a.That the DNA evidence sought is material and relevant for just determination of this appeal.b.That the evidence was not possible to be taken during trial because the minor had not been born.c.That the applicant opines that the additional evidence will assist this court in establishing critical facts and linkage of the appellant to the crime.d.That the appellant is entitled to fair trial under Article 50(2) of the Constitution.e.That the respondent will not suffer any prejudice.f.That the interest of justice is in favour of this application. 3.The applicant has sworn a supporting affidavit sworn on 15/4/2026 to buttress his application. 4.The applicant avers that during trial it was difficult to determine the period of pregnancy yet the same was material in determining when the offence occurred. 5.That during trial the complainant insisted that the appellant was the only person she had intercourse with. 6.The applicant avers that since the trial court could not believe him, it is only fair for DNA to be conducted to clear the air or any doubt given that the child born out of the offence was born on 28th October 2025 rather than September 2025 in his view. 7.The State/respondent has opposed this application and has cited the decision of Mohammed Abdi Mohamoud –vs- Ahmed Abdullahi & Others (2018)eKLR where the court found that an applicant seeking to adduce additional evidence is required to satisfy the following criteria;i.That the additional evidence is relevant.ii.That the additional evidence is compelling.iii.That the evidence could not be adduced or obtained upon exercise of reasonable diligence.iv.That the evidence is necessary to remove vagueness or doubt and has a direct bearing in the case. 8.The respondent contends that the applicant has not satisfied any of the above criterion. 9.According to the respondent what is sought to be adduced is not new since the complainant was expectant at the time. Mr Mugun for State argued that it is not material even if it is proved that prior to the offence being committed by the appellant, the minor had had prior sexual contact with another person and relied on the provisions of Section 34 of Sexual Offences Act. 10.The respondent further relies on the replying affidavit sworn on 15/5/2026 by Grace Rop a prosecuting counsel from Office of Director of Public Prosecution. 11.The deponent avers that the appellant was accorded an opportunity to challenge the prosecution’s case during trial and that the complainant was pregnant during trial and only gave birth after judgment had been delivered. 12.She further avers that the applicant expressed interest to fast track the trial with a view to disposing the case expeditiously which was granted. 13.The State avers that it was able to prove through evidence, all the ingredients of the offence under which the appellant was convicted. According to the respondent pregnancy or paternity are not the necessary ingredients to prove an offence under Sexual Offences Act. 14.The State opines that the additional evidence sought by the appellant is of no or little probative value and is not likely to influence the outcome of the appeal herein. It urges this court to decline the same. 15.This court has considered this application and the response made. The main issue in this application is whether the applicant has established sufficient basis to be allowed to adduce additional evidence under Section 358(1) of the Criminal Procedure Code. 16.The prayer for additional evidence to be taken especially at the appellate stage is given only in exceptional circumstances. The provisions of Section 358(1) Criminal Procedure Code provides as follows;“(1)In dealing with an appeal from a subordinate court, the High Court, if it thinks additional evidence is necessary, shall record its reasons, and may either take such evidence itself or direct it to be taken by a subordinate court”. 17.Flowing from the above, it is clear that it is incumbent upon an applicant to demonstrate the necessity of the additional evidence in the appeal and the court is required to record reasons for allowing additional evidence to be taken. 18.The respondent in response has cited a Supreme Court’s decision in the case of Mohammed Abdi Mohamoud –vs- Ahmed Abdullahi & 3 Others (supra) which decision was in relation to an election petition and whether an appellant can be allowed to adduce additional evidence under the rules of that court. The authority cited was dealing with a different circumstance but I find the principles set therein useful and a guidance to criteria applicable when considering an application under Section 358(1) of the Criminal Procedure Code. 19.In the case of George Vollins –vs- Republic 2916 KEHC 7921 (KLR) the court while finding that an appellate court has unfettered discretion to take additional evidence, the discretion needs to be exercised only on sufficient grounds. The court referenced the decision of Samuel Kiragu Kamau –vs- Republic (2015)eKLR where the court made the following observations;“It has been said time and again that the unfettered power of the court to receive additional evidence should be used sparingly and only where it is shown that the evidence is fresh and would make a sufficient impact in determination of the appeal….” 20.The court further observed that additional evidence on appeal should not be allowed for purposes of allowing a party to patch up his case or to remove lacuna or fill gaps in the evidence adduced during trial. 21.In this application the applicant has demonstrated that the additional evidence sought to be introduced became available only after the trial. The respondent has conceded this fact in the replying affidavit that indeed the complainant gave birth after the judgment had been delivered or after a verdict regarding the appellant’s guilt had been reached. 22.This court finds that in criminal matters the primary consideration in the exercise of any discretion are the principles of a fair trial under the provisions of Article 50 of the Constitution. In this regard the exercise of discretion under Section 358(1) Criminal Procedure Code depends on whether the new evidence sought to be adduced is new and could not be adduced at the trial upon exercise of due diligence and that the additional evidence is not only relevant or material to the issues at hand but likely to have a significant bearing in determination of the case or appeal for that matter. 23.This court has perused through the proceedings and in particular the evidence tendered by the complainant as well as the appellant. The complainant was categorical on when the appellant committed the offence. She gave four occasions in December 2024, January and March 2025 and it was later discovered that she had gotten pregnant. The appellant on the other hand vehemently denied any involvement stating that he was framed and knew the culprit who made the girl pregnant. 24.The circumstances obtaining in light of the above allegations in my view shows that given that the complainant gave birth after judgment had been delivered, sufficient grounds have been laid for additional evidence to be adduced to ensure that the appellant is accorded a chance to present additional evidence in line with principles of a fair trial. He is entitled to a fair trial. The additional evidence is unlikely to prejudice anyone in this appeal. The forensic evidence is relevant and it will assist this court in determining this appeal. The application is therefore allowed in the following terms;a.The appellant and the subject minor shall be escorted to Kijana Wamalwa Referral Hospital for purposes of taking samples to be sent to Kisumu Government Chemist for forensic analysis to determine paternity.b.The DNA results on paternity be availed to this court by a competent witness on a date that is convenient to all parties.A mention date for that purpose shall be taken upon delivery of this ruling. DELIVERED, DATED AND SIGNED AT KITALE THIS 4TH DAY OF JUNE, 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTRuling delivered in open courtIn the presence ofChebii holding brief for Mukabane for the ApplicantMugun for the StateDuke/Chemosop – court assistants