Moses Mohammed Fadhili V Republic [2012] KECA 47 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Occurrence Book of 11th December 2001 should be availed as additional evidence on appeal
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.
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.
Whether the authorities cited by the applicant (Henry Kimathi v R and Judith Show v Francis Show) compelled production of the OB
Both cases were held distinguishable on the facts.
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 27th February, 2012 is disallowed
- 2.The appeal be fixed for hearing
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.