Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedCivil Application E018 of 2023

Wanga v Republic

Supreme Court of Kenya
21 December 2023
1,416 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Supreme Court rejects bid to add new evidence filed before the appeal itself.

What this practically means

#

The Supreme Court dismissed an application by Godrick Simiyu Wanga to introduce additional evidence in his criminal appeal. The court found the application was premature because it was filed before the appeal was formally on record. Additionally, the applicant failed to specify what the new evidence actually was, only mentioning vague categories. Without concrete details, the court could not assess whether the evidence was relevant or credible. The application was therefore dismissed, with costs to be decided later.

Executive summary

#
This was an application by Godrick Simiyu Wanga seeking leave to adduce additional evidence in his intended appeal against the Republic. The applicant had initially filed a notice of motion seeking extension of time to file an appeal and leave to adduce additional evidence. By consent, the court extended time and the applicant filed his appeal. The only remaining issue was prayer 3 seeking leave to adduce additional evidence. The applicant argued that the additional evidence would relate to the circumstances of his arrest, empirical research on fair trial rights, and the adverse effects of violating those rights. The respondent opposed the application, arguing it did not meet the criteria under section 20 of the Supreme Court Act. The Supreme Court dismissed the application, holding that it was premature because it was filed before the appeal was on record, and that the applicant had failed to set out the specific evidence sought to be adduced, making it impossible for the court to assess its relevance or credibility. The court deferred costs to abide the outcome of the appeal.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has met the criteria for admission of additional evidence under section 20 of the Supreme Court Act and rule 26 of the Supreme Court Rules

Key legal issues

#
01

Whether an application for additional evidence can be granted when filed before the appeal is on record.

Holding

No. The application for additional evidence is premature if filed together with an application for leave to appeal out of time, before the appeal is on record.

Reasoning

The court reasoned that the petition of appeal contains all grounds of appeal, facts, evidence, and applicable law. Without it, the court cannot properly determine whether the additional evidence meets the criteria under section 20 of the Supreme Court Act. The applicant initially sought leave to file the notice of appeal out of time, which was granted by consent, and only later filed the appeal. The prayer for additional evidence was made before the appeal was on record, making it premature.

02

Whether the applicant sufficiently set out the additional evidence sought to be adduced.

Holding

No. The applicant merely alluded to categories of evidence without specifying the actual evidence, making it impossible for the court to assess relevance or credibility.

Reasoning

The court noted that the applicant only referred to 'affidavit evidence on the circumstances of his arrest, empirical evidence on the right to a fair trial and the adverse effects of violation of that right' without providing the actual evidence. The court cannot determine relevance, credibility, or whether the evidence meets the section 20 criteria with such bare material. This failure alone was sufficient to dismiss the application.

Legal principles established

#
  • An application for additional evidence must be based on a filed appeal; filing it with a request for extension of time is premature.
  • A party seeking to adduce additional evidence must clearly set out the specific evidence, not just general categories.
  • The court cannot assess relevance or credibility of additional evidence if the applicant only alludes to types of evidence without specifics.
  • Failure to specify the actual evidence sought to be adduced is sufficient grounds to dismiss the application.
  • Costs of a premature application for additional evidence may be deferred to abide the outcome of the main appeal.

Court orders

#
  1. 1.Prayer 3 of the application dated July 4, 2023 is hereby dismissed.
  2. 2.The costs of this application to abide the outcome of the appeal.

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

#

Leave to adduce additional evidence

The application was premature as there was no appeal on record at the time of filing; the applicant did not set out the additional evidence sought to be adduced, making it impossible for the court to assess relevance or credibility.

Costs

The costs of this application to abide the outcome of the appeal.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Where a prayer is made for admission of additional evidence together with the prayer for leave to file an appeal out of time and there being no appeal on record at the time of filing the application, the prayer is clearly premature.
p. 4 Additional evidence - prematurity
the applicant has not set out the additional evidence he seeks to adduce. He has merely alluded to affidavit evidence on the circumstances of his arrest, empirical evidence on the right to a fair trial and the adverse effects of violation of that right.
p. 5 Additional evidence - insufficient specificity
Prayer 3 of the application dated July 4, 2023 is hereby dismissed.
p. 5 Final order - dismissal
The costs of this application to abide the outcome of the appeal.
p. 5 Costs order

Key timeline

#
2023-07-04
Godrick Simiyu Wanga files notice of motion seeking extension of time to appeal and leave to adduce additional evidence.
2023-07-04
Supreme Court grants extension of time by consent; Wanga files his appeal.
2023-07-04
Supreme Court hears and dismisses prayer 3 for additional evidence as premature and insufficiently specified.

Practical implications

#
For lawyers

File appeal first, then evidence application

When seeking to introduce additional evidence in the Supreme Court, ensure the appeal is already on record before filing the application. Filing both together is premature and will be dismissed. Also, specify the exact evidence—affidavits, documents, or reports—not just categories like 'circumstances of arrest' or 'empirical research.'

For businesses

Be precise in court applications

If your business is involved in litigation requiring additional evidence, ensure your legal team files the main appeal first and then applies for new evidence separately. Vague references to types of evidence will not satisfy the court. Provide concrete documents or affidavits to allow the court to assess relevance and credibility.

For individuals

Know the right order for appeals

If you want to add new evidence to your Supreme Court appeal, you must first file the appeal itself. Applying for both at the same time is too early. Also, you must clearly describe the new evidence—not just say it's about your arrest or fair trial rights. The court needs specifics to decide if it's relevant.

Frequently asked questions

#
Can I apply for additional evidence at the same time as asking for more time to appeal in Kenya?+

No. The Supreme Court ruled that an application for additional evidence must be based on a filed appeal. If you file it together with a request for extension of time, before the appeal is on record, it is premature and will be dismissed.

What must I include in an application for additional evidence in Kenya's Supreme Court?+

You must set out the specific evidence you want to introduce, such as affidavits, documents, or reports. Vague references to categories like 'circumstances of arrest' or 'empirical research' are not enough. The court needs concrete details to assess relevance and credibility.

What happens if I don't specify the additional evidence in my Supreme Court application in Kenya?+

The court will dismiss your application. In this case, the Supreme Court found that bare allusions to types of evidence without specifics made it impossible to determine relevance or credibility, which alone was sufficient to reject the application.

Can I appeal the dismissal of an application for additional evidence in Kenya?+

The dismissal of the application itself is a procedural ruling. However, the court deferred costs to abide the outcome of the main appeal, meaning the issue may be revisited if the appeal proceeds. Consult a lawyer about your specific case.

Cite this brief

#

Cite this brief

Caselaw, "Wanga v Republic", Case Analysis (2023). Civil Application E018 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/108/eng@2023-12-21

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