https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11619

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NANYUKI** **MISCELLENEOUS CRIMINAL APPLICATION NO. E016.OF 2024** **FROM HCCRA NO. E052 OF 2021 AT NANYUKI** **FROM ORIGINAL CR. CASE NO. 1085 OF 2018 AT CM's COURT NANYUKI** **BETWEEN** **CHARLES MAGUTA WAIRIMU ………………………….… APPLICANT** **VERSUS** **REPUBLIC …………………………………………………... RESPONDENT** **RULING** **Introduction** 1. Before this Court is the Appellant's undated Notice of Motion in which he principally seeks an order directing that the Original Occurrence Book (OB No. 49/22/07/2018) from Nanyuki Police Station be availed during the hearing of this appeal so that he may rely upon it as part of his defence evidence. The application is supported by the Applicant's affidavit sworn on even date. 2. The application is opposed through the Respondent's Grounds of Opposition dated 23rd July 2024 and written submissions. The Respondent contends that the Applicant has failed to satisfy the legal threshold for the admission of additional evidence on appeal and that the application is an attempt to reopen the defence case after conviction. 3. I have carefully considered the application, the supporting affidavit, the rival submissions, the record of the trial Court and the authorities cited by both parties. **Issue for Determination** 1. Only one issue falls for determination: **Whether the Applicant has established sufficient grounds for this Court to exercise its discretion under section 358 of the Criminal Procedure Code by calling for and admitting the Original Occurrence Book (OB No. 49/22/07/2018) as additional evidence in this appeal.** **Analysis and Determination** 1. The jurisdiction of this Court to receive additional evidence on appeal is founded upon **section 358(1) of the Criminal Procedure Code**, which provides that where the High Court considers additional evidence necessary for the determination of an appeal, it may record its reasons and either receive such evidence itself or direct that it be taken by a subordinate Court. 2. The discretion conferred by that provision is neither automatic nor unlimited. It is an exceptional jurisdiction which must be exercised sparingly and only where the interests of justice so require. It is not intended to afford an unsuccessful litigant a second opportunity to reconstruct or improve his case after conviction. 3. The principles governing the exercise of that discretion are now well settled. In **Elgood v Regina [1968] EA 274**, the former Court of Appeal for Eastern Africa held that additional evidence should only be admitted where it was unavailable during the trial despite the exercise of reasonable diligence, is relevant to the issues before the appellate Court, is credible, and is of such weight that it would probably have an important influence on the determination of the appeal, though it need not necessarily be decisive. 4. The same principles have consistently been reaffirmed by our superior Courts. In **Samuel Kungu Kamau v Republic** **[2015] eKLR**, the Court of Appeal reiterated that the power to receive additional evidence should be exercised sparingly and only where the proposed evidence is fresh and would significantly affect the determination of the appeal. Similarly, in **Mohamed Abdi Mahat v Republic** **[2019] eKLR,** the Supreme Court underscored that the admission of additional evidence on appeal is an exceptional jurisdiction to be exercised cautiously and is not intended to enable a party to fill evidentiary gaps or rebuild a case on appeal. 5. Applying the foregoing principles to the present application, I find that the Applicant's request is fundamentally undermined by the record of the trial proceedings. The proceedings reveal that during the cross-examination of PW3, learned defence counsel specifically referred the witness to **Occurrence Book Entry No. 49/22/07/2018** and interrogated him on its contents. The record at page 64 of the certified proceedings reflects the following exchange: *"Shown complainant's O.B. No. 49/22/07/18. Reportee knew attackers........"* 1. The Applicant therefore cannot legitimately contend that the Occurrence Book constitutes evidence that was unavailable during the trial. On the contrary, the record demonstrates that the defence was aware of the document, had access to its contents and elected to utilize it during cross-examination. The Applicant has not alleged, nor demonstrated, that he sought production of the original Occurrence Book before the trial Court and that such request was declined, or that the document was otherwise unavailable despite the exercise of reasonable diligence. 2. In those circumstances, I am persuaded that the relief now sought has largely been overtaken by events. The defence cannot now contend that the Occurrence Book constitutes evidence previously unavailable to it when the record demonstrates that its contents were already known to and relied upon by the defence during trial. What the Applicant now seeks is an opportunity to formally produce a document whose existence and contents were already available to him. Such an application falls outside the scope and purpose of section 358 of the Criminal Procedure Code. 3. Even assuming that the Original Occurrence Book could properly be regarded as additional evidence within the meaning of section 358 of the Criminal Procedure Code, the application would nevertheless fail. The Applicant has not explained why the document could not have been formally produced during the trial despite having knowledge of it throughout the proceedings. He has equally failed to identify the specific contents of the document upon which he intends to rely, the issue or issues in the appeal to which those contents relate, or the manner in which they would probably have an important influence on the outcome of the appeal. The application merely asserts that the document is important without demonstrating its materiality. The Court cannot exercise its discretion on the basis of speculation. 4. The Applicant repeatedly states that he intends to produce the Occurrence Book as **"his defence evidence."** That description is telling. It demonstrates that the application is directed at supplementing the defence case after conviction rather than correcting an exceptional omission that could not reasonably have been addressed during the trial. Section 358 of the Criminal Procedure Code was never intended to permit an appellant to reopen the defence case or fill evidentiary gaps after an adverse verdict. 5. The Court of Appeal in **Lawrence Frank Wanyama & Another v Republic** [2020] eKLR, while approving the reasoning in **Wanje & Others v A.K. Saikwa & Others** [1984] KLR 275, observed that the power to admit additional evidence is not intended to enable an unsuccessful litigant to patch up weak points in his case, remove lacunae in the evidence or make out a fresh case on appeal. That principle applies with equal force in the present application. 6. I have also considered the authorities relied upon by the Applicant, including **Daniel Kipngetich Sang v Republic**, **Samuel Kungu Kamau v Republic**, **Thomas Patrick Gilbert Cholmondeley v Republic**, **Marcarios Itugu Kanyoni v Republic**, and **Judith Deborah Cave Shaw v Francis Robert Shaw**. Properly understood, those decisions do not lower the threshold under section 358 of the Criminal Procedure Code. Rather, they reiterate that additional evidence is only admissible where the applicant demonstrates that the evidence was unavailable despite the exercise of reasonable diligence, is relevant, credible and likely to influence the outcome of the appeal. For the reasons already given, the Applicant has failed to satisfy those requirements. 7. Similarly, the Applicant's reliance on **Pandya v Republic** [1957] EA 336 and **Kiilu & Another v Republic** [2005] 1 KLR 174 is misplaced. Those decisions articulate the duty of a first appellate Court to reconsider and independently evaluate the evidence adduced before the trial Court. They do not confer upon an appellant an unrestricted right to reopen the evidentiary record or introduce evidence that could, with reasonable diligence, have been produced during the trial. 8. Having carefully considered the application in its entirety, I am not persuaded that this is one of the exceptional cases warranting the exercise of this Court's discretion under section 358 of the Criminal Procedure Code. **Disposition** 1. Accordingly, I find that the Applicant's Notice of Motion lacks merit and is hereby dismissed. For the avoidance of doubt, I make the following orders: 2. The Applicant's Notice of Motion seeking an order directing the production of the Original Occurrence Book (OB No. 49/22/07/2018) is hereby dismissed. 3. The appeal shall proceed to hearing on the basis of the record of the proceedings before the trial Court. It is so ordered. **DATED SIGNED AND DELIVERED THIS 29TH DAY OF JULY 2026.** **A.K. NDUNG’U** **JUDGE**