Peter Wahiga Kabiru,Simon Baabu Mwangi & Zachary Sinda Kerosia v Republic (Criminal Appeal 103,106 & 108 of 2014) [2017] KECA 571 (KLR)
The bottom line
#Kenya's Court of Appeal cannot accept new evidence in a second appeal, so the applicants' fresh-evidence request was struck out entirely.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction under Rule 29(1)(b) of the Court of Appeal Rules, 2010 to admit additional evidence in a second appeal arising from the High Court exercising first appellate jurisdiction
- 2.If jurisdiction exists, whether the applicant has shown sufficient reason for the admission of fresh evidence
Key legal issues
#Jurisdiction of the Court of Appeal to admit additional evidence on a second appeal
The Court lacks jurisdiction under Rule 29 to admit additional evidence in a second appeal; that power exists only where the Court is acting as a first appellate court from the superior court's original jurisdiction.
Rule 29(1)(b) applies 'on any appeal from a decision of the superior court acting in the exercise of its original jurisdiction'. In a second appeal from the High Court's first appellate decision, the High Court did not act in its original jurisdiction. Admitting evidence would entrench on factual matters contrary to section 361 CPC, which limits second appeals to questions of law. Following Brown Tunje Ndago, Marcarios Itugu Kanyoni and Daniel Mwathi Njaramba, the Court found the application did not lie and struck it out.
Jurisdiction must be determined before considering merits or discretion
The jurisdictional threshold precedes and controls the discretionary threshold in applications under Rule 29.
The Court identified two thresholds in Rule 29 applications: a jurisdictional one and a discretionary one, with the discretionary threshold dependent on the jurisdictional one. Invoking the principle that jurisdiction is everything and a court without it must down its tools, the Court held it had to adjudicate the jurisdictional issue first, and having found none, never reached the merits of the fresh-evidence principles.
Principles governing admission of additional evidence where jurisdiction exists
Where jurisdiction exists, additional evidence is admitted only in rare and exceptional cases satisfying the Elgood v Regina / R v Parks principles: evidence not available at trial, relevant, credible, and capable of creating a reasonable doubt.
The Court restated the guiding principles from Joginder Auto Service Ltd, Samuel Kungu Kamau, Wanje v Saikwa and Elgood v Regina: the power must be used sparingly; the evidence must not have been obtainable with reasonable diligence at trial, must be relevant and credible, and must probably have an important influence on the result. These principles, however, apply only once jurisdiction is established, which was absent here.
Legal principles established
#- The Court of Appeal has jurisdiction to admit additional evidence under Rule 29(1)(b) only where it is hearing an appeal from a superior court acting in its original jurisdiction (i.e. sitting as a first appellate court); in a second appeal it has no jurisdiction to admit additional evidence.
- On a second appeal under section 361 of the Criminal Procedure Code, the Court of Appeal's jurisdiction is confined to matters of law only, and it is bound by concurrent findings of fact of the two courts below.
Court orders
#- 1.The notice of motion dated 7th January 2016 seeking to introduce additional evidence is struck out for want of jurisdiction
- 2.The ruling is delivered under Rule 32 of the Court of Appeal Rules owing to the retirement of Hon. Justice F. Azangalala as at 31st March, 2017
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- H. C. Cr. A. Nos. 177, 181, 182 & 183 of 2011
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeals on matters of law only) read with Rule 29 of the Court of Appeal Rules, 2010
- Consolidated with
- Criminal Appeal (Application) Nos. 103, 106 & 108 of 2014 (consolidated appeals)
Relief refused
#Application to introduce fresh evidence (affidavit of Josephat Mithanga Kagunda, legible copies of defence exhibits 2 and 3, lease agreement and rent receipts) and for evaluation of that evidence
Rule 29(1)(b) confers power to admit additional evidence only on appeals from a superior court acting in its original jurisdiction; in a second appeal the Court has no such jurisdiction
Costs
No costs order recorded in the ruling; the application was struck out with no express order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, we find that the application before us does not lie under Rule 29 of the Court’s Rules and the Court lacks the jurisdiction to consider it. It is struck out. Orders accordingly.
Thus, in a second appeal, this Court does not have the jurisdiction to order the taking of additional evidence.
The applicant must show that the evidence sought to be adduced could not have been obtained with reasonable diligence for use at the trial.
the power given by the Rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence.
Issues in the judgment
#The coram lists three judges (Waki, Nambuye & Azangalala, JJ.A) but the ruling records that Azangalala JA retired on 31st March 2017 before delivery on 5th April 2017, and only Waki and Nambuye sign the judgment; the panel composition at delivery is therefore ambiguous.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Wahiga Kabiru,Simon Baabu Mwangi & Zachary Sinda Kerosia v Republic (Criminal Appeal 103,106 & 108 of 2014) [2017] KECA 571 (KLR)", Case Analysis (2017). Criminal Appeal (Application) Nos. 103, 106 & 108 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/571/eng@2017-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.