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High CourtDismissedNot stated in the judgment (consolidated criminal appeals fixed for hearing on 4th December, 2019)

Republic v DPP Application for Additional Evidence in Consolidated Criminal Appeals (Appellants v Respondent)

High Court of Kenya
2 June 2020
4,848 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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You cannot use new evidence on appeal simply to correct a clerical error or omission in the trial court record.

What this practically means

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Executive summary

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This is a ruling by Ngenye-Macharia, J of the High Court at Nairobi on a Notice of Motion dated 11th May, 2020 by the Director of Public Prosecutions in consolidated criminal appeals. The DPP sought leave under Section 358(1) of the Criminal Procedure Code and Article 159(2) of the Constitution to adduce additional evidence to establish that PW1, the complainant, was in fact sworn before testifying, even though the trial record did not so indicate. Both Appellants opposed, arguing the application sought to cure an incurable procedural defect, violated Articles 25(c) and 50(4), and that the trial court was functus officio. The court applied the Elgood v Regina principles and the Supreme Court's guidelines in Charles Maina Gitonga v Republic. It held that the omission in the record was not a typographical error; that how proceedings were recorded is not evidence and cannot be corrected, impeached or rectified by additional evidence; that correcting an omission in the recording of evidence is not fresh evidence unavailable at trial; and that none of the suggested witnesses (prosecutor, trial magistrate, court assistant) was competent to give the evidence, the magistrate having become functus officio upon certification of the record. Article 159(2)(d) could not aid the Applicant since the law prescribes strict adherence. The court also found the DPP's reliance on Patius Gichobi Njagi misleading, that decision having ordered a mistrial and fresh trial, not additional evidence. The application was dismissed and the appeal directed to be fixed for hearing. No costs order was made.

Key legal issues

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01

Whether the omission of the record that PW1 was sworn can be supplied by additional evidence

Holding

No - the omission is a procedural defect in the record, not evidence, and cannot be corrected by additional evidence under Section 358

Reasoning

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.

p. 4
02

Whether the suggested witnesses (prosecutor, trial magistrate, court assistant) are competent to adduce the additional evidence

Holding

None is competent; any such evidence would be concocted evidence from couched witnesses

Reasoning

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.

p. 5
03

Whether Article 159(2)(d) of the Constitution can sustain the application

Holding

No - the provision only aids circumstances occasioned purely by technicalities, not failures to meet specific statutory requirements

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The application dated 11th May, 2020 is dismissed for lacking merit
  2. 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

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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, "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.