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Court of AppealDismissedCriminal Appeal 558 of 2010· [2012] KECA 47 (KLR)

Moses Mohammed Fadhili V Republic [2012] KECA 47 (KLR)

Court of Appeal of Kenya
9 November 2012
757 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to admit a police Occurrence Book as new appeal evidence because its contents were already covered in the trial record.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Nairobi (Githinji, Koome and Maraga, JJAA) on a notice of motion dated 27th February, 2012 brought under Rules 29(1)(b) and 2 of the Court of Appeal Rules in the applicant's pending Criminal Appeal No. 558 of 2010. The applicant, convicted of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death after an unsuccessful first appeal to the High Court (Lesiit & Makhandia, JJ), sought an order that the Occurrence Book of 11th December, 2001 of Kenyatta Police Post, Nairobi be availed, contending he was arrested on the basis of a complaint recorded in it. The court noted that although the OB itself was never produced as an exhibit at trial or on first appeal, the substance of its contents was elicited in evidence: the complainant said he gave the applicant's names to the police, and PC Gitonga confirmed in cross-examination that the initial report was recorded as theft from a person though its details disclosed robbery with violence. The State opposed, arguing the evidence was already before the trial court. The two authorities cited by the applicant were found distinguishable. The court held that reliance on the record of proceedings sufficed and that non-production of the OB as an exhibit caused no prejudice. The motion was disallowed and the appeal was ordered to be fixed for hearing. No costs order was made.

Key legal issues

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01

Whether the Occurrence Book of 11th December 2001 should be availed as additional evidence on appeal

Holding

The application was disallowed because the information in the OB had already been elicited in evidence at trial, and non-production of the document as an exhibit caused no prejudice.

Reasoning

The complainant testified that he recognised the applicant and gave his names to the police, and PC Gitonga confirmed in cross-examination that the initial OB report was one of theft from a person, though its details disclosed robbery with violence. Because that evidence is on the record of proceedings, calling for the OB would be unnecessary and its absence as an exhibit is not prejudicial to the applicant. The authorities relied on by the applicant were distinguishable on their facts.

p. 2
02

Whether the authorities cited by the applicant (Henry Kimathi v R and Judith Show v Francis Show) compelled production of the OB

Holding

Both cases were held distinguishable on the facts.

Reasoning

In Henry Kimathi v R the OB, once produced, contradicted the complainant's evidence and the appeal was allowed; in Judith Show the dispute was civil over marital property. Here, by contrast, the evidence from the relevant OB extracts was in fact adduced in court even though a copy was not produced as an exhibit, so the rationale of those cases did not apply.

p. 2

Legal principles established

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  • Where evidence contained in a document such as an Occurrence Book was adduced orally at trial even though the document itself was not produced as an exhibit, an applicant on appeal cannot obtain its production as additional evidence absent prejudice; he may rely on the record of proceedings.

Court orders

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  1. 1.The notice of motion dated 27th February, 2012 is disallowed
  2. 2.The appeal be fixed for hearing

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Court of Appeal RulesRule 29(1)(b)
  • Court of Appeal RulesRule 2

Cases cited (2)

  • Henry Kimathi v R
    NYR CR No. 24 of 2002
  • Judith Show v Francis Show
    AICA No. 361 of 2005
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 241 of 2002
Jurisdiction invoked
Rules 29(1)(b) and 2 of the Court of Appeal Rules (application for admission of additional evidence in a pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Moses Mohammed Fadhili V Republic [2012] KECA 47 (KLR)", Case Analysis (2012). Criminal Appeal 558 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/47/eng@2012-11-09

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