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Court of AppealDismissedCriminal Appeal (Application) No. 27 of 2017· [2018] KECA 529 (KLR)

Isaac Oduor Abiero v Republic [2018] KECA 529 (KLR)

Court of Appeal of Kenya
7 June 2018
1,120 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to hear new witness testimony on appeal, confirming appeals cannot be used to fix a weak trial case.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Kisumu (Githinji, Okwengu and Mohammed, JJ.A.) dismissed an application by Isaac Oduor Abiero, a police sergeant convicted of murder and sentenced to death by the High Court at Kisumu (E.N. Maina, J.) in H.C.CR.A. No. 48 of 2014, for leave to admit additional evidence of three witnesses at the hearing of his appeal against conviction and sentence. The application was brought under Rule 29 of the Court of Appeal Rules and sections 3, 3A and 3B of the Appellate Jurisdiction Act. The court restated the settled principles governing admission of additional evidence on appeal, following Samuel Kungu Kamau v Republic: the discretion is exercised sparingly and with caution; it will not be used to patch up defects in the applicant's trial case or make a fresh case on appeal; the applicant must show the evidence was unavailable at trial or could not be obtained with reasonable diligence, and that it is credible and capable of importantly influencing the appeal's result. The court found the explanation that the witnesses could not be reached implausible, since C.I Wanyama remained OCS at Kondele Police Station and no steps such as witness summonses were taken. Further, Wanyama was not at the scene and his evidence could not importantly influence the appeal, while the accounts of Crispo and George merely repeated versions already given by the applicant and the two officers who testified. The application was accordingly dismissed. The ruling is a single judgment of the whole court, binds the High Court and subordinate courts on the Rule 29 principles, and makes no costs order.

Key legal issues

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01

Whether the applicant demonstrated that the three proposed witnesses were unavailable at trial

Holding

The court held that the applicant failed to show the witnesses were not available to testify at the trial, as he was on bond, had counsel throughout the two-year trial, and took no steps such as applying for witness summonses.

Reasoning

The applicant's explanation that he could not reach the witnesses was not credible. C.I Wanyama, a senior police officer, remained OCS of Kondele Police Station at the time of the application. No steps to trace Crispo and George were disclosed and no witness summons was sought. The discretion of the court could not be used to reopen the trial merely because the applicant believed his defence would have been more credible had he called witnesses.

p. 2
02

Whether the proposed additional evidence would have an important influence on the outcome of the appeal

Holding

The court held the proposed evidence was either not new or would be mere repetition of evidence already given at trial.

Reasoning

C.I Wanyama was not at the scene, and his affidavit's concerns about ballistic examination of the other officers' guns would not importantly influence the appeal given the trial court had considered the applicant's own explanation of the shooting. The accounts of Crispo and George mirrored versions already given by the applicant and by P.C Mwamburi and P.C Mwangi at trial, so the facts would be mere repetition and not fresh evidence.

p. 2

Legal principles established

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  • The discretion to admit additional evidence on appeal under Rule 29(1)(b) must be exercised sparingly and with caution, and not to patch up defects in the applicant's case at trial
  • An applicant for admission of additional evidence must show the evidence was not available at the trial or could not have been obtained by reasonable diligence, and that it is credible and would have an important influence on the result of the appeal

Court orders

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  1. 1.The application for leave to admit additional evidence is dismissed

Authorities

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Legislation

  • Court of Appeal RulesRule 29(1)(b)
  • Appellate Jurisdiction Actsections 3, 3A, 3B
  • Penal Codesections 203 and 204

Cases cited (1)

  • Samuel Kungu Kamau v Republic
    [2015] eKLR
On appeal from
High Court of Kenya at Kisumu
H.C.CR.A. No. 48 of 2014
Jurisdiction invoked
Rule 29 of the Court of Appeal Rules and sections 3, 3A and 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Isaac Oduor Abiero v Republic [2018] KECA 529 (KLR)", Case Analysis (2018). Criminal Appeal (Application) No. 27 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/529/eng@2018-06-07

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