Mkb v Republic
The bottom line
#Kenya's Court of Appeal allowed a death-row appellant to present his birth certificate as new evidence showing he was a minor when convicted.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant's proposed additional evidence (birth certificate showing he was a minor at conviction) meets the Article 50(6) threshold of new and compelling evidence
Yes. The birth certificate, though the respondent questions its authenticity, shows the applicant was born on January 26, 1994 and was therefore about 16 years old when convicted and sentenced on December 8, 2010. The evidence was not available at trial despite due diligence and is capable of affecting the sentence.
The Court applied the Supreme Court's test in Tom Martins Kibisu v Republic. The applicant was unrepresented at trial and on the later part of his High Court appeal, could not have procured the birth certificate before conviction, and the certificate is material because if he was a minor the mandatory sentence of death could not lawfully have been imposed. The respondent conceded prayers 1 and 2 and would have an opportunity to cross-examine. The Court was satisfied the motion met the threshold.
Whether the court could declare the proceedings a mistrial on this application
No. A declaration of mistrial is not capable of determination in an application for leave to adduce additional evidence and file supplementary grounds; the appeal should instead be heard on a priority basis.
The applicant's prayer 3 sought a declaration that the lower court case amounted to a mistrial for failure to consider his age in sentencing. The Court held that such a declaration could only properly be made upon hearing of the appeal itself, and confined itself at this interlocutory stage to allowing the additional evidence and directing a priority listing. This is a ruling on scope of interlocutory relief, not a final determination on the mistrial claim.
Legal principles established
#- Under Article 50(6) of the Constitution, 'new evidence' is evidence which was not available at the time of trial and which, despite exercise of due diligence, could not have been availed at the trial; 'compelling evidence' is evidence that would have been admissible at trial, of high probative value, capable of belief, and which would probably have led to a different verdict.
- A court considering whether evidence is new and compelling must ascertain that it is prima facie material to, or capable of affecting or varying, the charges, the trial process, the conviction or the sentence.
- A declaration of mistrial cannot be granted in an application for leave to adduce additional evidence; such relief falls for determination at the hearing of the appeal itself.
Court orders
#- 1.The applicant's motion dated July 19, 2022 is allowed in terms of prayers 1 and 2 thereof
- 2.Leave granted to the applicant to adduce new evidence, being his certificate of birth plus complimentary evidence, before this Court or the trial court
- 3.Leave granted to the applicant to file a supplementary memorandum and grounds of appeal and further complimentary submissions to the appeal
- 4.The registry is directed to list the applicant's appeal for hearing on a priority basis
- On appeal from
- High Court of Kenya (on appeal from the Chief Magistrate's Court at Eldoret)
- Chief Magistrate's Court at Eldoret Criminal Case No. 654 of 2010
- Jurisdiction invoked
- Article 50(6)(b) of the Constitution; Sections 29, 65 and 66 of the Court of Appeal Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mkb v Republic", Case Analysis (2023). Criminal Appeal (application dated 19th July 2022) – Court of Appeal, Nakuru. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/343/eng@2023-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.