Daniel Kipngetich Sang v Republic [2011] KECA 127 (KLR)
The bottom line
#Kenya's Court of Appeal allowed new evidence—a birth certificate showing the applicant was 14 at sentencing—to challenge a life sentence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted leave to adduce additional evidence (a birth certificate) on the pending appeal
- 2.Whether the applicable legal framework is Article 159(2)(d) of the Constitution, section 3A of the Appellate Jurisdiction Act, or Rule 29 of the Court of Appeal Rules
- 3.Whether exceptional circumstances were disclosed justifying the admission of additional evidence
Key legal issues
#Governing framework for additional evidence in criminal appeals
Rule 29 of the Court of Appeal Rules, not section 3A of the Appellate Jurisdiction Act, donates the discretionary power; Article 159(2)(d) does not convert substantive evidentiary matters into mere procedural technicalities.
The court noted the application was predicated on Article 159 (d) (sic), section 3A of the Appellate Jurisdiction Act and Rule 29. Section 3A was held irrelevant as it applies to civil litigation. The court held that the orders sought go to substantive matters of evidence, leaving Rule 29 as the operative source of discretion to take or direct the taking of additional evidence.
Principles for admitting additional evidence on appeal
The Elgood v Regina principles apply: the evidence must not have been available at trial, must be relevant, credible, and capable of raising a reasonable doubt; such leave is granted only in very exceptional cases, and proof of the evidence should be attached to the supporting affidavit.
The court adopted the principles from Elgood v Regina [1968] EA 274, which itself applied R. v. Parks and disapproved the statement in John Hasakwa v. R. These principles govern the exercise of discretion under Rule 29 in criminal appeals and were applied to the birth certificate sought to be admitted.
Application of the principles to the birth certificate
Exceptional circumstances were disclosed: the birth certificate, procured after conviction and after dismissal of the first appeal, was not available earlier and would form a firm basis for challenging the legality of a life sentence imposed on a person who, per the certificate, was a minor.
The birth certificate was obtained on 13th November 2006, over two years after conviction and three months after dismissal of the High Court appeal, so it was unavailable to those courts. The evidence would show the appellant was aged 14 at sentencing, questioning the legality of the life sentence under section 361(1)(b) of the Criminal Procedure Code. The State did not oppose.
Legal principles established
#- The Court of Appeal may, in its discretion and for sufficient reason under Rule 29, take additional evidence or direct that it be taken by the trial court or a commissioner, where the evidence was not available at trial, is relevant, credible, and might reasonably have affected the outcome; but only in very exceptional cases.
- Section 3A of the Appellate Jurisdiction Act does not apply to criminal appeals; it applies to civil litigation.
Court orders
#- 1.The application is allowed and the birth certificate identified as E. No [particulars withheld], registered in Kericho District on 31st October, 2006 is admitted as part of the evidence in the record of appeal
- 2.The appeal shall be listed for hearing and disposal expeditiously
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kericho
- H.C.CR.A. No. 55 of 2004
- Jurisdiction invoked
- Rule 29 of the Court of Appeal Rules; Article 159(2)(d) of the Constitution invoked by the applicant (section 3A of the Appellate Jurisdiction Act cited but held inapplicable to criminal matters)
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.
We allow the application and admit the birth certificate identified as E. No [particulars withheld], registered in Kericho District on 31 st October, 2006 as part of the evidence in the record of appeal. The appeal shall be listed for hearing and disposal expeditiously.
it is only in very exceptional cases that the Court of Appeal will permit additional evidence to be called;
in its discretion, for sufficient reason, to take additional evidence or to direct that additional evidence be taken by the trial court or by a commissioner.
the affidavit in support of an application to admit additional evidence should have attached to it a proof of the evidence sought to be given;
Issues in the judgment
#The judgment cites 'Article 159 (d) (sic)' of the Constitution as predication of the application, while quoting Article 159(2)(d); minor internal imprecision in the provision cited.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Kipngetich Sang v Republic [2011] KECA 127 (KLR)", Case Analysis (2011). Criminal Appeal (Application) No. 33 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/127/eng@2011-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.