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Court of AppealDismissedCriminal Appeal No. 121 of 2017· [2019] KECA 6 (KLR)

Daniel Nzioka & Simon Maina v Republic [2019] KECA 6 (KLR)

Court of Appeal of Kenya
27 March 2019
1,810 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to add new evidence to a murder appeal because the applicants never tried to get that evidence during their trial.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Kiage, Sichale and ole Kantai, JJ.A) on two consolidated motions by Daniel Nzioka and Simon Maina, who had been convicted of murder and sentenced to death by Muchemi, J of the High Court at Embu on 2nd August 2017 in Embu HCCR. No. 32 of 2012, and whose appeal was pending as Nyeri Criminal Appeal No. 121 of 2017. The applicants sought leave under, in substance, Rule 29 of the Court of Appeal Rules to have the proceedings in Siakago Criminal Case No. 589 of 2012 and an Occurrence Book report of 27th December 2011 produced and included in the record of appeal as additional evidence. They argued these materials showed they had reported a theft by the deceased to police the day before he died, which the trial judge allegedly failed to take into account. A bail pending appeal application was abandoned at the hearing. The court reviewed its jurisdiction and the governing principles, drawing on Muemi Nzale Wambua, The Administrator, HH The Aga Khan Platinum Jubilee Hospital v Munyambu, and the Supreme Court's Mohamed Abdi Mahamud decision. Counsel for the applicants conceded that no application for production of the materials had been made at trial. The court found that the materials were readily available at trial, that none of the principles for admitting additional evidence had been satisfied, and dismissed both motions. The applicants' conviction and death sentence remained undisturbed, awaiting the substantive appeal. No costs order was made.

Key legal issues

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01

Jurisdiction to admit additional evidence on appeal from a superior court's original jurisdiction

Holding

The Court has jurisdiction to admit additional evidence only where it acts as a first appellate court from a superior court's original jurisdiction decision, such as a conviction for murder

Reasoning

Rule 29 empowers the Court, for sufficient reason and in its discretion, to take additional evidence or direct that it be taken by the trial court or a commissioner. The Court relied on Muemi Nzale Wambua to confirm this jurisdiction exists only where a pending appeal from a superior court's original jurisdiction exists, as in murder convictions, which was the case here.

p. 2
02

The principles governing leave to adduce additional evidence

Holding

Leave is generally granted where the evidence could not with reasonable diligence have been obtained at trial, would probably have an important influence on the result, and is apparently credible; the Mohamed Abdi Mahamud principles expand this to exceptional, case-by-case assessments including relevance, credibility, and whether the evidence seeks to fill gaps

Reasoning

The Court traced the jurisprudence from The Administrator, HH The Aga Khan Platinum Jubilee Hospital v Munyambu through Muemi Nzale Wambua to the Supreme Court's decision in Mohamed Abdi Mahamud, adopting the enumerated principles including relevance, influence on the verdict, reasonable diligence, credibility, non-voluminousness, fairness, and the bar on using additional evidence to patch weak points in a case.

p. 2
03

Whether the applicants satisfied the principles for admission of additional evidence

Holding

They did not: the proceedings and Occurrence Book were readily available at trial but no application was made for their production, and no sufficient basis for the exercise of discretion was laid

Reasoning

Counsel conceded no application had been made before the trial judge for production of the magistrate's court proceedings or the Occurrence Book. The materials were readily available at trial, so the reasonable-diligence limb failed. The Court found no material upon which to exercise its discretion and dismissed both motions.

p. 3

Legal principles established

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  • Additional evidence may be admitted on appeal only where it could not with reasonable diligence have been obtained at trial, would probably have an important influence on the result, and is apparently credible though not incontrovertible
  • The power to admit additional evidence under Rule 29 is a discretionary power to be exercised judiciously, with reason, and only on a sufficient basis laid by the party seeking it

Court orders

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  1. 1.Consolidation of the two applications dated 9th May, 2018 and 12th September, 2018 and heard as one
  2. 2.Dismissal of both applications
  3. 3.Abandonment of the application for bail pending appeal noted at the hearing

Authorities

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Legislation

  • Constitution of Kenyavarious articles (not specified)
  • Court of Appeal RulesRule 29(1)(b)

Cases cited (3)

  • Muemi Nzale Wambua & another vs. Republic
    [2018] eKLR
  • The Administrator, HH The Aga Khan Platinum Jubilee Hospital vs. Munyambu
    [1985] KLR 127
  • Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamad & 3 others
    [2018] eKLR
On appeal from
High Court of Kenya at Embu
Embu HCCR. No. 32 of 2012
Jurisdiction invoked
Rule 29(1)(b) of the Court of Appeal Rules (discretion to admit additional evidence on appeal from a superior court exercising original jurisdiction)

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, "Daniel Nzioka & Simon Maina v Republic [2019] KECA 6 (KLR)", Case Analysis (2019). Criminal Appeal No. 121 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/6/eng@2019-03-27

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