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Court of AppealDismissedCriminal Appeal 137 of 2003· [2006] KECA 236 (KLR)

Augustine Mwenda Kiama v Republic

Court of Appeal of Kenya
19 May 2006
Philip Kiptoo TunoiP.K. TunoiEOE.O. O'KubasuEGE.M. Githinji
792 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to accept new evidence in a second appeal, confirming that second appeals only review legal errors, not facts.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Tunoi, O'Kubasu and Githinji, JJA) on a notice of motion by Augustine Mwenda Kiama, the appellant in Criminal Appeal 137 of 2003, seeking an order that the court call for and admit as additional evidence the Occurrence Book of 1st February 2001 from Nyeri Police Station. The applicant had been convicted of robbery, with concurrent findings of guilt by the trial magistrate's court and the High Court on appeal, based partly on a finding that he had the ignition key of the robbed motor vehicle when he reported the robbery at the police station. Counsel for the applicant argued that only production of the Occurrence Book would establish the truth, while the State submitted that the application sought to introduce additional evidence, outside the court's jurisdiction on a second appeal. The court held that only matters of law fall for determination on a second appeal under section 361 of the Criminal Procedure Code, and admitting the Occurrence Book would transform the court into a court of facts. Applying the Mzee Wanjie conditions for additional evidence under Rule 29, it found the applicant had not shown the evidence could not have been obtained by reasonable diligence or that it would likely have affected the result. Distinguishing Henry Kimathi v R, where the O.B. had been demanded from the trial stage, the court dismissed the application. No costs order was made.

Key legal issues

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01

Whether additional evidence may be introduced on a second appeal

Holding

The application was refused: admitting the Occurrence Book would convert the second-appellate court into a court of facts, contrary to section 361 of the Criminal Procedure Code, and the applicant did not meet the Rule 29 requirements of reasonable diligence and likely effect on the result.

Reasoning

Section 361 of the Criminal Procedure Code confines second appeals to matters of law; facts settled by the trial court and first appellate court cannot be reopened. The Occurrence Book was sought for the first time in the Court of Appeal, unlike in Henry Kimathi v R where the appellant had demanded it from the trial stage. Even assuming jurisdiction, the Mzee Wanjie conditions were not satisfied.

p. 2

Legal principles established

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  • On a second appeal only matters of law fall for determination, and the Court of Appeal will not receive additional evidence that would turn it into a court of facts.
  • Additional evidence under Rule 29 will only be admitted where it could not have been obtained by reasonable diligence and would likely have affected the result.

Court orders

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  1. 1.The application by notice of motion seeking production and admission of the Occurrence Book as part of the record of appeal be and is hereby dismissed

Authorities

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Legislation

  • Criminal Procedure Codesection 361
  • Court of Appeal RulesRule 29
  • Court of Appeal RulesRules 31 & 42

Cases cited (2)

  • Mzee Wanjie and 93 Others v A.K. Saikwa, A.C. Kanyarati, S.W. Kibogo and William Gachiringa
    (1982-88) 1 KAR 462

    Conditions for admission of additional evidence under Rule 29: reasonable diligence, likely effect on result, re-appraisal reserved for hearing

  • Henry Kimathi v R
    Criminal Appeal No. 24 of 2002 (unreported)

    Distinguished: there the appellant had sought production of the O.B. from the trial onwards, unlike the present applicant

On appeal from
High Court of Kenya at Nyeri
H.C.CR.A. No. 303 of 2001
Jurisdiction invoked
Rules 31 & 42 of the Court of Appeal Rules (application); second appeal under section 361 of the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Augustine Mwenda Kiama v Republic", Case Analysis (2006). Criminal Appeal 137 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/236/eng@2006-05-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.