Republic v DPP Application for Additional Evidence in Consolidated Criminal Appeals (Appellants v Respondent)
The bottom line
#You cannot use new evidence on appeal simply to correct a clerical error or omission in the trial court record.
What this practically means
#Executive summary
#Key legal issues
#Whether the omission of the record that PW1 was sworn can be supplied by additional evidence
No - the omission is a procedural defect in the record, not evidence, and cannot be corrected by additional evidence under Section 358
The court found that neither the handwritten nor typed proceedings recorded that PW1 was sworn, so the error was not typographical. How proceedings were recorded is not evidence; the law provides other avenues for procedural defects. Correcting an omission in the recording of evidence is not fresh evidence unavailable at trial, nor evidence relevant to the issues that would materially affect the appeal.
Whether the suggested witnesses (prosecutor, trial magistrate, court assistant) are competent to adduce the additional evidence
None is competent; any such evidence would be concocted evidence from couched witnesses
A prosecutor cannot be a witness in a case he prosecutes; a court assistant merely administers court processes and has nothing to do with what the magistrate records; the magistrate is functus officio once proceedings are certified, and can only revisit them where typed proceedings do not tally with the handwritten record, which is not this scenario.
Whether Article 159(2)(d) of the Constitution can sustain the application
No - the provision only aids circumstances occasioned purely by technicalities, not failures to meet specific statutory requirements
The court accepted the Applicant was invoking sub-article (2)(d) on administration of justice without undue regard to procedural technicalities. However, where the law prescribes strict adherence, a party cannot seek refuge in that provision; the present application turns on the law on additional evidence, not on a technicality.
Legal principles established
#- The power to admit additional evidence on appeal is discretionary under Section 358(1) of the Criminal Procedure Code and must be exercised sparingly per the Elgood and Gitonga principles
- An appellate court relies wholly on the record of trial proceedings; how proceedings were recorded is not evidence and cannot be corrected by additional evidence
- A trial magistrate becomes functus officio once proceedings are certified as a true copy of the original record, save where the typed proceedings do not tally with the handwritten record
- Article 159(2)(d) cannot cure a failure to meet statutory requirements; it only aids circumstances occasioned purely by procedural technicalities
Court orders
#- 1.The application dated 11th May, 2020 is dismissed for lacking merit
- 2.The appeal can now be fixed for hearing
- On appeal from
- Subordinate court (trial magistrate's court)
- Jurisdiction invoked
- Section 358(1) of the Criminal Procedure Code; Article 159(2) of the Constitution invoked by the Applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v DPP Application for Additional Evidence in Consolidated Criminal Appeals (Appellants v Respondent)", Case Analysis (2020). Not stated in the judgment (consolidated criminal appeals fixed for hearing on 4th December, 2019). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.