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Court of AppealDismissedCriminal Appeal (Application) No. 113 of 2014· [2016] KECA 284 (KLR)

Bernard Gathiaka Mbugua & 4 others v Republic [2016] KECA 284 (KLR)

Court of Appeal of Kenya
2 August 2016
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
2,348 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it rarely allows new evidence on appeal, especially evidence that existed but wasn't gathered during the original trial.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal (Waki, Nambuye and Kiage JJA) on an interlocutory application by John Karanja Njuguna, the 5th appellant in a pending first appeal against a murder conviction and 20-year sentence imposed by the High Court (Emukule J.) sitting in Nakuru. The applicant sought leave under Rule 29(1) of the Court of Appeal Rules, 2010 and Section 361 of the Criminal Procedure Code to introduce two Occurrence Book entries from Naivasha Police Station, contending they showed the witnesses did not identify the attackers and that no murder was committed. The Republic opposed, noting the applicant had not satisfied the requirement that the evidence was unavailable at trial. The court took the opportunity to correct a growing misconception that an acquittal on identification evidence depends on the witness's report appearing in the police Occurrence Book, reaffirming Terekali v Republic while clarifying that first reports are evidentiary matters for evaluation. Applying the well-established principles from Elgood v Regina (adopting R. v Parks) and Wanje v Saikwa, the court held that additional evidence must be unavailable at trial, relevant, credible, and capable of raising a reasonable doubt, and that the power is exercised sparingly and only in rare and exceptional cases. The OB entries had always existed and could have been retrieved with due diligence, so they were not fresh evidence; further evidence to show the applicant was not identified at the scene would be tautological. The application was dismissed and the main appeal ordered to proceed to hearing. No costs order was made.

Key legal issues

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01

Principles governing admission of additional evidence on appeal under Rule 29(1) of the Court of Appeal Rules

Holding

Additional evidence may only be admitted where it was not available at trial, is relevant, is credible, and is capable of creating a reasonable doubt as to guilt; the power is exercised sparingly and only in rare and exceptional cases.

Reasoning

The court traced the principles to Elgood v. Regina, which adopted Lord Parker CJ's summary in R. v. Parks, and to Wanje v Saikwa as quoted in Samuel Kungu Kamau v Republic. The conditions are cumulative and must be considered together. The applicant failed at the first hurdle because the OB entries existed during the trial and could have been obtained with due diligence, and the application was not exceptional.

p. 4
02

Whether evidence that existed at trial but was not produced constitutes fresh evidence

Holding

No - evidence always in existence during trial and retrievable with due diligence does not qualify as fresh evidence under Rule 29.

Reasoning

The OB entries were public police records available during the trial. The applicant, who was represented at trial, never raised the issue of the OB entries. The court noted the prosecution had been compelled to close its case because the investigating officer could not be found, and his evidence would only have been supportive. Further evidence to underscore a fact already apparent on the record would be tautological.

p. 4
03

The significance of a first report (OB entry) in identification cases

Holding

While a first report is important as a test of truth and accuracy, its absence is not automatically fatal; it is a matter of evidence for the court to evaluate.

Reasoning

The court observed a growing mistaken belief that an appellant is entitled to acquittal in identification cases unless the identifying witness's report appears in the police Occurrence Book. The court reaffirmed Terekali v Republic as good law but clarified that whether a report was made, and when and how, are evidentiary matters for evaluation, not an automatic rule of acquittal. This explains the upsurge of OB-production applications the court deplored.

p. 2

Legal principles established

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  • The jurisdiction to admit additional evidence under Rule 29(1) lies only with respect to first appeals, whether civil or criminal, and the discretion is not absolute since the applicant must establish sufficient cause.
  • Additional evidence on appeal must satisfy four cumulative conditions: it must not have been available at trial, be relevant to the issues, be credible, and be capable of creating a reasonable doubt in the mind of the court as to the guilt of the appellant.
  • Evidence that existed during the trial and could have been retrieved and produced with due diligence is not fresh evidence for purposes of Rule 29.
  • The power to receive additional evidence on appeal should be used sparingly; the rule is not intended to enable a party to patch up weak points in its case or fill gaps in evidence.
  • Whether or not a report on identification was made, when it was made and where or how it was made, are all matters of evidence which the court must evaluate; absence of an OB entry is not automatically fatal to identification evidence.

Court orders

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  1. 1.The application for leave to adduce additional evidence is dismissed
  2. 2.The main appeal shall proceed to hearing

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 29(1), (2), (3) & (4)
  • Criminal Procedure Code, Cap 75Section 361
  • Penal CodeSection 203 as read with Section 204

Cases cited (5)

  • Terekali & Another vs. Republic
    [1952] EA 259
  • Marcarios Itugu Kanyoni v Republic
    [2011] eKLR
  • Samuel Kungu Kamau v Republic
    [2015] eKLR
  • Wanje v Saikwa
    [1984] KLR 275
  • Elgood V. Regina
    (1968) E.A. 274
On appeal from
High Court of Kenya
H. C. Cr. C. No. 42 of 2010
Jurisdiction invoked
Rule 29(1) of the Court of Appeal Rules, 2010 and Section 361 of the Criminal Procedure Code (Cap 75)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bernard Gathiaka Mbugua & 4 others v Republic [2016] KECA 284 (KLR)", Case Analysis (2016). Criminal Appeal (Application) No. 113 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/284/eng@2016-08-02

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