Daniel Mwathi Njaramba & 2 others v Republic [2013] KECA 91 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether Rule 29 of the Court of Appeal Rules empowers the Court to admit additional evidence on a second appeal
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.
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.
Whether additional evidence may be admitted on a second appeal under Rule 31 where it bears on a point of law such as identification
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.
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.