Godffrey Muchugia Gitonga & another v Republic [2017] KECA 385 (KLR)
The bottom line
#Kenya's Court of Appeal ruled it cannot accept new evidence on a second criminal appeal because second appeals only review questions of law.
What this practically means
#Executive summary
#Key legal issues
#Whether additional evidence may be admitted on a second appeal under Rule 29 of the Court of Appeal Rules, 2010
No. Rule 29(1)(b) applies expressly to first appeals, which proceed by way of re-hearing and involve re-appraisal of fact; on a second appeal matters of fact are excluded from the Court's jurisdiction, so an application to adduce further evidence cannot lie.
Section 361 of the Criminal Procedure Code confines second appeals to matters of law. A first appeal is a re-hearing in which the Court re-appraises evidence and draws its own inferences of fact, which is why Rule 29(1)(b) is confined to first appeals. The OB entries sought were never sighted or appreciated by the two courts below, so admitting them would require a de novo examination of fact that is not open to a second appellate court.
Whether Article 159 of the Constitution can be invoked as a procedural cloak for an application otherwise jurisdictionally barred
No. Article 159 is not a wide-open highway for bringing all manner of applications; procedural bases are fully provided in the Civil Procedure Act, the Criminal Procedure Code and the Court of Appeal Rules, and Article 159 cannot overcome a jurisdictional bar.
Counsel abandoned reliance on Rule 29 and sought refuge in Article 159, but could cite no authority for that novel proposition. The Court held that where an application cannot by its nature be entertained, ingenuity or creativity riding on Article 159 cannot lend it admittance. The Court also decried the growing unhelpful practice of applications to produce OB entries merely to show an appellant was not named in the first report.
Legal principles established
#- On a second appeal the Court of Appeal deals only with matters of law, and additional evidence not before the courts below cannot be received because it would require a de novo examination of fact outside the Court's second appellate jurisdiction
- Rule 29(1)(b) on adduction of additional evidence applies only when the Court is considering a first appeal from a superior court exercising original jurisdiction, not a second appeal
- Article 159 of the Constitution is not a free-standing procedural basis for applications; where an application cannot be entertained by the Court, no reliance on Article 159 can lend it admittance where the door is jurisdictionally shut
Court orders
#- 1.The application for leave to adduce additional evidence is dismissed
- On appeal from
- High Court of Kenya at Nairobi
- HC.CR.A. No. 159 & 160 of 2016
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code; Rule 29 of the Court of Appeal Rules, 2010; Article 159 of the Constitution (raised by appellant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godffrey Muchugia Gitonga & another v Republic [2017] KECA 385 (KLR)", Case Analysis (2017). Criminal Appeal No. 88 of 2016 (R). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/385/eng@2017-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.