Marcarios Itugu Kanyoni v Republic
The bottom line
#Kenya's Court of Appeal confirmed it cannot accept new evidence on second appeals — appeals from magistrate courts reach it on questions of law only.
What this practically means
#Executive summary
#Key legal issues
#Scope of Rule 29(1)(b) of the Court of Appeal Rules
Rule 29(1) applies only to appeals from a superior court acting in its original jurisdiction; the Court therefore lacks jurisdiction to admit additional evidence on a second appeal.
The rule expressly applies to appeals from a decision of the superior court in the exercise of its original jurisdiction. The applicant was convicted by a magistrate, appealed to the High Court which was exercising appellate jurisdiction, and this Court would be a second appellate court dealing with points of law only. Additional evidence generally concerns matters of fact, which the Legislature could not have intended a second appellate court to receive.
Whether, on the merits, the discretion to admit additional evidence should be exercised
Even if jurisdiction existed, the applicant failed: the evidence was available at trial and no exceptional case or injustice was shown.
Applying the principles in Elgood v Regina, the evidence sought must not have been available at trial. Alfred Karimi and Inspector Mutembei were mentioned by Rose at trial and the vehicle records discrepancy was raised. Counsel never sought to summon the witnesses. Nor was it shown that the outcome would have differed had the evidence been led, or that the applicant would suffer great injustice.
Legal principles established
#- The Court of Appeal may take additional evidence only when dealing with a first appeal from a conviction by the High Court; it has no jurisdiction to take additional evidence on a second appeal from a subordinate court.
- When the High Court dismisses a first appeal from a subordinate court, it is exercising appellate, not original, jurisdiction, so Rule 29(1) is not engaged.
- Additional evidence on appeal will only be admitted in very exceptional cases, and the evidence sought must not have been available at trial.
Court orders
#- 1.The application for leave to adduce additional evidence is dismissed
- On appeal from
- High Court of Kenya at Nyeri
- H.C.CR.A. No. 53 of 2007
- Jurisdiction invoked
- Rule 29(1)(b) of the Court of Appeal Rules (application for leave to adduce additional evidence); the court found it lacked jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marcarios Itugu Kanyoni v Republic", Case Analysis (2011). Criminal Application No. 5 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/164/eng@2011-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.