Eliud Ole Mbaria v Republic

The Court examined the text of rule 29(1), which by its terms empowers the Court to take or direct additional evidence only on appeal from a superior court acting in its original jurisdiction. The applicant's appeal was a second appeal from the High Court's appellate jurisdiction. Counsel's invocation of inherent powers was rejected because the legal position was clearly spelled out in the Rules, and creating an exception would amount to the Court making its own laws. The Court therefore concluded it had no jurisdiction.

In Henry Kimathi, the omission to consider the OB was the applicant's main defence at all stages, so its non-production occasioned injustice. In the present case, only the co-accused sought an OB (from Loitoktok, not Kabete), and the applicant never sought any OB at trial or in the first appeal. The Court also aligned itself with its earlier ruling in Augustine Mwenda Kiama, which held that introducing an OB on a second appeal would transform the Court into a court of facts contrary to section 361 of the Criminal Procedure Code.

The Court applied the settled principles in Mzee Wanje v A.K. Saikwa: additional evidence may be admitted only if it could not have been obtained by reasonable diligence and if it would likely have affected the result. The applicant, present when his co-accused successfully applied for the Loitoktok OB, could have done the same for the Kabete OB at trial. No attempt was made to show the OB would have altered the outcome of the case.

The applicant's counsel argued he could not seek the OB at trial because of language problems. The Court noted the alleged affidavit did not raise that reason, there was no complaint in the proceedings about comprehension, and counsel cannot give evidence from the bar. The applicant's co-accused's successful application for the Loitoktok OB, made in his presence, showed he was aware of the right to seek an OB.