Muemi Nzale Wambua & another v Republic [2018] KECA 315 (KLR)
The bottom line
#The Court of Appeal dismissed two Kenyan murder appellants' bids to add new evidence because they never tried to obtain it during their trial.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to admit additional evidence on appeal under rule 29(1)(b)
The Court has jurisdiction because the appeal is a first appeal from a High Court murder conviction, i.e. an appeal from the superior court's original jurisdiction.
Rule 29(1)(b) empowers the Court to take additional evidence or direct that it be taken by a trial court. Following Brown Tunje Ndago, jurisdiction exists only where the Court acts as a first appellate court from a superior court conviction such as murder. The applicants' pending appeal from a High Court murder conviction satisfies this threshold, so the Court proceeded to the substantive considerations.
Reasonable diligence requirement
The applicants failed to show reasonable diligence: the documents were in the public domain, counsel could have obtained them, and no application was made at trial to adduce them.
Both applicants had counsel who could have obtained the OB extract and the civil suit court file; the documents were always in the public domain. The record showed no application to adduce this evidence at trial, no refusal by the court, and no explanation that the documents were only recently traced. The first precondition was therefore not fulfilled.
Influence of the evidence on the result of the appeal
The evidence would have no significant impact: the request was too general, no basis was laid, and the material would not affect the outcome.
The State argued nothing turned on the OB extract, and the Court found the 1st applicant had not specified or laid any basis for the evidence. The request for the civil suit file was too general and lacking in specificity; the 2nd applicant gave no details of the actual evidence sought, how it would be applied, or how it would affect the result. Relevance and necessity for the appeal were not demonstrated.
Legal principles established
#- The Court of Appeal has jurisdiction to admit additional evidence only where there is a pending appeal from a decision of the superior court in its original jurisdiction, i.e. where it sits as a first appellate court.
- An applicant for leave to adduce additional evidence must establish jurisdiction, then show that the evidence could not be obtained with reasonable diligence for use at the trial, that it would probably have an important (though not necessarily decisive) influence on the result, and that it is apparently credible though not incontrovertible.
Court orders
#- 1.The 1st applicant's Notice of Motion dated 17th June 2016 is dismissed
- 2.The 2nd applicant's Notice of Motion dated 16th February 2016 is dismissed
- On appeal from
- High Court at Machakos
- Criminal Case No. 102 of 2008
- Jurisdiction invoked
- Rule 29(1)(b) of the Court of Appeal Rules; the Court's jurisdiction as a first appellate court from a superior court conviction for murder
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Daniel Nzioka & Simon Maina v Republic [2019] KECA 6 (KLR)[2019] KECA 6 (KLR)27 Mar 2019followed
Cite this brief
#Cite this brief
Caselaw, "Muemi Nzale Wambua & another v Republic [2018] KECA 315 (KLR)", Case Analysis (2018). Criminal Appeal No. 313 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/315/eng@2018-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.