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Kenya decisions
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Okudho v SS Mehta and Sons Limited [2025] KEELRC 1427 (KLR)
The court overruled an objection to a defence witness testifying about documents filed by the claimant, holding the witness could rebut them despite no further witness statement.
Khisa v Republic [2025] KECA 486 (KLR)
The Court of Appeal, in a second appeal, is bound by concurrent findings of fact by the two courts below unless there is no evidence supporting those findings or the courts fundamentally misunderstood the evidence. Issues not raised and determined in the lower courts cannot be introduced for the first time on a second appeal, save for pure matters of law. The constitutionality of mandatory minimum sentences under the Sexual Offences Act has been affirmed by the Supreme Court.
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Sakaja v Sakaja [2025] KEELC 388 (KLR)
The court dismissed an application to take the plaintiff’s evidence de bene esse, holding that a power of attorney to testify through her son made the request unnecessary.
Shitubi v Prosecution [2025] KEHC 755 (KLR)
The conviction of the appellant was not safe because the prosecution failed to prove the offence of defilement beyond a reasonable doubt due to gaps in the evidence, including the failure to call a crucial witness and inconsistencies in witness testimonies, which did not negate the plausible defence of fabrication.
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Waithiegeni v Republic [2025] KECA 121 (KLR)
The Court of Appeal dismissed the second appeal, finding that the prosecution proved the ingredients of defilement beyond a reasonable doubt, including penetration, and that the trial and first appellate courts properly considered the evidence and the appellant's defence. The sentence, while mandatory under the Sexual Offences Act, was deemed lawful and appropriate given the circumstances of the offence, although the avenue to challenge its constitutionality in light of the Muruatetu directives exists in a different forum.
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Republic v Githinji [2024] KEHC 12042 (KLR)
The High Court found that the trial magistrate did not commit any error or cause prejudice to the prosecution by allowing a witness who had previously testified for the prosecution to also testify for the defence. The court emphasized that this was not a case of recalling a witness, and that a witness is not the property of either party. The precedent cited by the applicant was distinguished as it related to recalling a witness, not permitting a witness to testify for both sides. The court concluded that there was no injustice or miscarriage of justice in the trial court's decision, and there…
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Pirani & 3 others v Al Busaidy (As trustee of Seif Bin Salini Trust) [2024] KEELC 4680 (KLR)
The court found that the application to re-open the plaintiff's case to allow the 3rd plaintiff to testify was merited. The judge held that the discretion to re-open a case and admit further evidence must be exercised judiciously, balancing the need for procedural compliance with the demands of substantial justice. The court was not persuaded that the application was a mere delaying tactic or that the defendant would suffer prejudice by the admission of the 3rd plaintiff's testimony. The court noted that the witness statement did not simply reiterate previous evidence and that there was no in…
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Jeremiah’s Creek Limited v Ndungu; Imwati (Interested Party) [2024] KEELC 237 (KLR)
The Environment and Land Court at Kwale allowed the defendant to call an additional witness after the plaintiff had closed its case, finding no prejudice and favoring justice.
Muriithi v Director of Public Prosecutions [2023] KEHC 26989 (KLR)
The High Court allowed a criminal appeal against a defilement conviction, quashing the sentence after finding the prosecution case unsafe and an adverse inference warranted.
PK v Republic [2023] KEHC 26071 (KLR)
The High Court found that the prosecution had proved all the ingredients of the offence of incest beyond reasonable doubt. The relationship between the appellant and the complainant as stepfather and stepdaughter was established and not disputed. The evidence of penetration was corroborated by the complainant's testimony, medical evidence, and supporting witnesses. The court held that minor contradictions in the prosecution's case did not undermine the overall credibility of the evidence. The absence of certain witnesses, such as Judy, was not fatal to the prosecution's case, as there was suf…
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