https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11896

TNW v Republic (Criminal Appeal E039 of 2024) [2026] KEHC 11896 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KEHC 11896 (KLR) Republic of Kenya In the High Court at Kiambu Criminal Appeal E039 of 2024 KL Kandet, J July 24, 2026 Between TNW Applicant and Republic Respondent Ruling 1.This ruling is in respect of a Notice of Motion dated 4th February, 2026, filed by the Appellant during the pendency of a first appeal. The Appellant seeks leave of this Court to receive, or to direct the taking of, additional evidence in the form of a post-judgment recantation attributed to the complainant. 2.The Appellant was tried before the Senior Principal Magistrate's Court at Githunguri in Sexual Offence Case No. E028 of 2023, on a charge of incest contrary to section 20(1) of the Sexual Offences Act. It was alleged that between January and August 2023, at [Particulars Withheld] village, Githunguri Sub-County, Kiambu County, he caused his penis to penetrate the vagina of PWN, his daughter, then aged between nine and eleven years. 3.He pleaded not guilty and the matter went to full trial. In its judgment dated 24th July, 2024, the trial court found the ingredients of incest proved: that the Appellant was the complainant's father, that penetration occurred, that he was positively identified, and that the complainant was a child at the material time. Invoking the proviso to section 124 of the Evidence Act, and being satisfied that the complainant was telling the truth, the court convicted him under section 215 of the Criminal Procedure Code. On 7th August, 2024, he was sentenced to thirty years imprisonment. 4.He now appeals against both conviction and sentence. While the appeal is pending, he filed the present Notice of Motion, dated 4th February, 2026, which is expressed to be brought under Order 51 Rule 1 of the Civil Procedure Rules, section 358(1) of the Criminal Procedure Code, and Articles 50(2) and 159(2)(d) of the Constitution. He asks this Court to take additional evidence itself, or to direct that it be taken by the trial court or the Registrar, on such terms as the Court considers will serve the ends of justice. II. The Applicant's Case 5.The application is supported by the Appellant's affidavit sworn on 4th February, 2026. He deposes that the complainant, a minor at the time of trial, has since voluntarily recanted her testimony and now states that she was never defiled by the Appellant/Applicant. He describes this as evidence that did not exist and could not, with reasonable diligence have been obtained at trial, having come to his knowledge only during the pendency of the appeal. He was unrepresented at trial and says he was consequently unable to test the prosecution's evidence adequately. He contends that the recantation is material and goes to the root of a conviction founded substantially on the complainant's own testimony, and that its exclusion would occasion a grave miscarriage of justice. 6.Counsel for the Appellant frames the application narrowly: the complainant, whose testimony supplied the core proof of penetration, identity and truthfulness, has after judgment recanted, and the relief sought is simply that this be received and tested on oath, with full opportunity for cross-examination, rather than treated as decided on the strength of an untested affidavit. 7.On jurisdiction, Counsel points to section 358 of the Criminal Procedure Code which allows the High Court to take additional evidence itself, or to direct that it be taken by the subordinate court, the Registrar, or another judicial officer. Where a subordinate court takes the evidence, it must certify it to the High Court, and unless the Court directs otherwise, the accused or his advocate must be present when it is taken. 8.Counsel further submits that the recantation is relevant precisely because it comes from the witness whose testimony the trial court treated as the foundation of guilt when it invoked section 124 of the Evidence Act to dispense with corroboration. The proviso reads:“Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth." 9.A post-conviction statement from that same witness that the offence did not occur, counsel argues, bears directly on whether that conviction can still be regarded as safe. The Appellant need only show that the recantation is capable of influencing the outcome, not that it will necessarily do so. 10.It is also submitted that the evidence was unavailable at trial and could not have been obtained then with reasonable diligence, since the recantation arose only after conviction. This, Counsel says, distinguishes the application from cases where a party seeks to call witnesses who were known and available at trial but simply were not called. 11.Counsel accepts that recantation evidence calls for caution, particularly in a sexual offence case involving a minor, but submits that caution is a reason to test the evidence rather than reject it outright. He proposes that the complainant be examined on oath in a child-sensitive manner, with the Respondent is free to cross-examine her on the circumstances of the recantation, including whether it was voluntary, whether she was induced, and whether she understood the consequences of departing from her sworn testimony during trial 12.The application, it is said, is not an attempt to fill gaps or mount a new case; the appeal already challenges the safety of a conviction resting substantially on the complainant's uncorroborated testimony, and the proposed evidence is narrow, confined to a single witness on a single issue, and would not derail the appeal. 13.Counsel submits that any prejudice to the Respondent can be cured through appropriate directions, including notice, cross-examination, an opportunity to call rebuttal evidence, and submissions on weight, whereas shutting the evidence out entirely would be grave for a man serving thirty years on a conviction resting materially on the complainant's word. 14.He relies on the Supreme Court's guidance in Charles Maina Gitonga v Republic, Petition No. 11 of 2017; [2018] eKLR, on the admission of additional evidence on appeal: that it should be directly relevant, in the interest of justice, capable of influencing the result, not obtainable with reasonable diligence at trial, credible, not so voluminous as to prejudice the other side, and not a device for patching gaps or mounting a fresh case. He also relies on Wanje v Saikwa [1984] KLR 275, for the proposition that the power to admit additional evidence exists to serve the interests of justice, not to allow a losing party to fill lacunae or remake its case after an adverse decision, and that the appellate court must find the evidence needful. III. The Respondent's Case 15.The Respondent opposed this application in the written submissions dated 6th July, 2026, 16.On jurisdiction, the Respondent accepts that section 358 of the Criminal Procedure Code confers power on an appellate court to admit additional evidence in the interest of justice, but insists that the power must be exercised sparingly, and only where the evidence is shown to be fresh, credible, and capable of a real impact on the outcome. Relying on Elgood v Regina [1968] EA 274 and Samuel Kungu Kamau v Republic [2015] eKLR, Counsel for the Respondent stresses that an applicant must attach proof of the evidence he wishes to give, and that no affidavit or sworn document from the complainant herself has been placed before the Court to demonstrate that she recanted her earlier testimony. The allegation, it is said, remains bare and unproven. 17.On trial integrity, the Respondent points out that the complainant was nine years old when she testified on 24th January, 2024, only months after the events of January to August 2023, so that her recollection was fresh. The trial court conducted a thorough voire dire, satisfied itself of her intelligence and her understanding of the oath, and specifically asked her whether anyone, including two named individuals, had coerced her into testifying against her father; she said no. Given that a father-daughter relationship is at the centre of this case, the Respondent submits it is entirely plausible that any post-conviction change of heart reflects family pressure rather than truth, and that without documented proof, the application is an abuse of both section 358 of the Criminal Procedure Code and the process of this Court. 18.On the evidence , the Respondent maintains that every ingredient of incest under section 20(1) of the Sexual Offences Act was proved beyond reasonable doubt. The birth certificate produced by PW4 fixed the complainant's age at nine years at the material time, and documentary proof of that kind is treated as conclusive, citing Mwalango Chichoro Mwanjembe v Republic [2016] eKLR, Daniel Kamau v Republic [2019] eKLR and Fappyton Mutuku Ngui v Republic [2014] eKLR. On penetration, PW2's direct account was corroborated by PW3's finding of a torn hymen. Identity was never in dispute, the Appellant being the complainant's biological father. 19.On legal representation, the Respondent submits that the right to State-funded Counsel under Article 50(2)(g) and (h) is qualified and requires proof of substantial injustice; the Appellant was given the prosecution's documents and a full opportunity to cross-examine witnesses, which he exercised. 20.On sentence, the Respondent submits that thirty years is lawful and proportionate given the Appellant's breach of parental trust against a young and vulnerable child, and relies on Francis Karioko Muruatetu & Anor v Republic [2021] eKLR, Onesmus Safari Ngao v Republic (Malindi Cr. App. No. 5 of 2020) and Republic v Ruth Wanjiku Kamande (Cr. App. 102 of 2018) for the proposition that statutory minimum sentences remain valid where the circumstances warrant them, and that nothing here calls for interference. 21.The Respondent urges for dismissal of both the application and the appeal. IV. Issues for Determination 22.The issue that arises for determination is whether the Applicant has met the threshold for this court to exercise its discretion under Section 358 of the CPC to admit additional evidence. V. Analysis and Determination 23.Section 358(1) of the Criminal Procedure Code gives this Court discretionary power to admit additional evidence on a first appeal where it considers it necessary to do so. That power is real, and I do not accept the Respondent's suggestion that Article 50 and Article 159 have no bearing on how it should be exercised. Those provisions inform the spirit in which the discretion is approached, even if they cannot substitute for the statutory conditions themselves. But discretion exercised sparingly is still discretion that must be triggered by something. 24.For the court to exercise its discretion and allow for admission of additional evidence, the Applicant must satisfy the followinga.The evidence is admissibleb.The evidence is crediblec.The evidence is relevantd.The evidence must be such that, if admitted, it would alter the result of the case. 25.The difficulty for the Appellant is not the law he relies on. It is what he has placed or failed to place before the Court to support the prayer for production of additional evidence 26.I have perused the affidavit in support of this application. Whereas the applicant deposes that the Child/complainant has recanted her testimony, he has not placed before this court for consideration anything to support that allegation. There is no affidavit, statement, transcript of any conversation, recording, statement signed or attributable to the child/complainant confirming that she recanted her testimony or at all. 27.What is before this Court is the Appellant's own account that the child recanted her testimony. That is hearsay for reason that the allegation of recantation of evidence is not linked or attributable directly or otherwise to the child whose evidence is actually in issue. An applicant who wants the Court to reopen the evidentiary record has to demonstrate to the Court circumstances under which the alleged recantation was obtained. A bare assertion that the child/complainant has changed her account is not sufficient. 28.In addition, I also find there is nothing before this court on how the alleged additional evidence was obtained. The Applicant’s affidavit is silent on the date, time, place and persons present when the recantation allegedly occurred. There is no explanation on whether the recantation was made voluntarily or it was made in the presence of for instance a children’s officer, an advocate or other independent witness. In such cases involving children, the Applicant ought to demonstrate that there has not been undue influence, coercion or interference. This is important to guarantee appropriate safeguards for the child’s welfare. 29.The Applicant has therefore failed to lay a foundation for this court to consider the credibility or relevance of the alleged additional evidence. The Court would be abdicating its duty under section 358 of the CPC if it were to admit evidence whose source or content is unknown. 30.Taking into account the totality of this application, the material before court, including the submissions and authorities cited, I find that the Applicant has not met the threshold for admission of additional evidence. What the Applicant is inviting the court to do is to reopen a concluded trial where the child will be led to recant her testimony. In my view that is not the correct approach. Evidence of recantation and how it was procured ought to have been placed before this court for consideration on whether or not it is credible and relevant for purposes of admission as additional evidence. 31.What the Appellant is basically asking the Court to direct the taking of evidence that has not first been shown, on some tangible basis, to exist. The order sought effectively asks the Court to authorise a fishing expedition dressed as the reception of additional evidence, contrary to the objectives contemplated under section 358 of the CPC. Disposition 32.For the above reasons, I am not satisfied that the threshold for admitting or directing the taking of additional evidence has been met. The Notice of Motion dated 4th February, 2026 is accordingly dismissed. The appeal shall proceed on the existing record, and I direct that it be listed for mention to confirm a hearing date. DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 24TH DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn the Presence of:Ms Adoyo hb for Nyamongo for the AppellantMs Murui for the StateCourt Assistant: Jael