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Court of AppealPartially AllowedCriminal Appeal (Application) No. 233 of 2012

Daniel Mwathi Njaramba & 2 others v Republic [2013] KECA 91 (KLR)

Court of Appeal of Kenya
10 December 2013
1,954 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it can allow new evidence in a second criminal appeal when that evidence tests a point of law like identification.

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 (Visram, Koome & Odek, JJ.A) on a Notice of Motion by the 1st appellant, Daniel Mwathi Njaramba, seeking to admit Occurrence Book No. 62 of 8th February, 2008 from Nyeri Police Station as additional evidence in his pending second appeal. The appellants had been convicted of robbery with violence and sentenced to death; the High Court (Sergon & Wakiaga, JJ.) confirmed their convictions on first appeal, and a second appeal was filed but was not before the Court in this application. The respondent argued that only Rule 29 governed admission of additional evidence and that no sufficient reason or diligence had been shown, invoking laches. The Court held that Rule 29, by its terms, applies only where the Court sits as a first appellate court from a superior court exercising original jurisdiction, and so was inapplicable to a second appeal. However, invoking Rule 31 and the overriding objective, the Court found it had jurisdiction to admit additional evidence on a second appeal. Because the appeal was confined to points of law under Section 361 of the Criminal Procedure Code, and because the Occurrence Book bore on the point of law of identification/recognition on which the lower courts made concurrent findings - discrepancies having been raised at all stages - the Court admitted the Occurrence Book and directed the Deputy Registrar to ensure its availability at the hearing of the appeal, with no orders as to costs. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

Whether Rule 29 of the Court of Appeal Rules empowers the Court to admit additional evidence on a second appeal

Holding

No - Rule 29 applies only where the Court sits as a first appellate court from a superior court exercising original jurisdiction, which is not the case on a second appeal.

Reasoning

The Court quoted Rule 29(1), which by its terms applies to appeals from a superior court acting in exercise of its original jurisdiction. Since this Court sits as a second appellate court, the provision is inapplicable, consistent with its earlier decision in Eluid Olembaria v Republic.

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02

Whether additional evidence may be admitted on a second appeal under Rule 31 where it bears on a point of law such as identification

Holding

Yes - Rule 31 and the overriding objective confer jurisdiction to admit additional evidence on a second appeal where necessary to test the safety of concurrent findings on identification.

Reasoning

The Court noted that Section 361 of the Criminal Procedure Code confines a second appeal to points of law and bars interference with concurrent findings of fact absent absence of evidence. Because the Occurrence Book bore on identification/recognition, a point of law, and discrepancies had been raised at all stages, admission was necessary to test whether the concurrent findings were safe.

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Legal principles established

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  • Rule 29 of the Court of Appeal Rules permitting admission of additional evidence applies only where the Court sits as a first appellate court from a High Court decision exercised in original jurisdiction, not on a second appeal.
  • By virtue of Rule 31 of the Court of Appeal Rules and the overriding objective, the Court of Appeal has jurisdiction to admit additional evidence, such as an Occurrence Book, on a second appeal.
  • The jurisdiction of the Court of Appeal on a second appeal is confined to points of law and it will not interfere with concurrent findings of fact unless based on no evidence.

Court orders

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  1. 1.The application to admit Occurrence Book No. 62 of 8th February, 2008 from Nyeri Police Station as part of the record of appeal is allowed with no orders as to costs
  2. 2.The Deputy Registrar of the Court to ensure the availability of Occurrence Book No. 62 of 8th February, 2008 or a certified true copy thereof from Nyeri Police Station at the hearing of the appeal
On appeal from
High Court of Kenya at Nyeri
H.C.CR.A No. 47 of 2010
Jurisdiction invoked
Rules 31 and 42 of the Court of Appeal Rules; the underlying second appeal lies 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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Cite this brief

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Cite this brief

Caselaw, "Daniel Mwathi Njaramba & 2 others v Republic [2013] KECA 91 (KLR)", Case Analysis (2013). Criminal Appeal (Application) No. 233 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/91/eng@2013-12-10

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