Republic v Ali Babitu Kololo [2017] KECA 133 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a death-row convict to present new forensic evidence on appeal, confirming courts can admit fresh evidence when it fairly supports the defence.
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 learned Judge erred in exercising his discretion under Section 358(1) of the Criminal Procedure Code to allow the respondent to adduce additional evidence on appeal
- 2.Whether the respondent satisfied the principles in Elgood vs. Regina for admission of additional evidence
- 3.Whether there was inordinate delay in bringing the application for additional evidence
- 4.Whether Section 21 of the Mutual Legal Assistance Act, rather than Section 358(1) of the Criminal Procedure Code, was the proper avenue for obtaining and admitting the forensic evidence
- 5.Whether the prosecution would suffer prejudice from the admission of the additional evidence
Key legal issues
#Principles governing admission of additional evidence by the High Court under Section 358(1) of the Criminal Procedure Code
The High Court has discretion to admit additional evidence if there is sufficient reason, applying the Elgood principles: evidence not available at trial, relevant, credible, and capable of creating a reasonable doubt.
The Court adopted the locus classicus principles in Elgood vs. Regina, as adopted from Lord Parker C.J in R. vs. Parks, and held that the considerations under Rule 29(1) of the Court of Appeal Rules apply equally to the High Court under Section 358(1). The forensic evidence released by UK authorities in March and April 2015 was not within the respondent's knowledge at trial; he promptly applied after receiving it. The evidence goes to whether the shoes recovered matched the scene impressions, and could create a reasonable doubt.
Applicability of Section 21 of the Mutual Legal Assistance Act
Section 21 applies only where a party seeks production of documents from a foreign state; it does not govern admission of evidence already in a party's possession.
The Court construed Section 21(1) as invoked where an accused applies for legal assistance in the form of production of documents from a foreign country. Since the respondent had already obtained the forensic evidence via the UK court order of 11th March 2015 and sought only its admission in his pending appeal, the provision was inapplicable, and Section 358(1) of the Criminal Procedure Code was the proper avenue.
Fair trial rights and prejudice to the prosecution
Admission of the additional evidence actualizes the respondent's Article 50 right to a fair trial and causes no prejudice to the prosecution, which retains the opportunity to attack the weight of the evidence.
The Court concurred with the learned Judge that because the case carried the death penalty, the accused should be accorded all available avenues to ventilate his case. The prosecution is not prejudiced because admission of additional evidence is not conclusive proof; the court must still assess probative value, and it is at that stage that the prosecution can challenge the weight of the evidence.
Legal principles established
#- The considerations applicable to admission of additional evidence under Rule 29(1) of the Court of Appeal Rules equally apply where the High Court considers an application to admit additional evidence under Section 358(1) of the Criminal Procedure Code.
- The power to admit additional evidence is discretionary but must be exercised sparingly and only for sufficient reason; it is not a device to patch gaps in a case.
- Where an accused person has obtained evidence through an alternative legal avenue and the evidence is in his possession, Section 21 of the Mutual Legal Assistance Act does not apply; the proper route is Section 358(1) of the Criminal Procedure Code.
- Admission of additional evidence does not conclude the matter; the court retains a duty to assess its probative value, and the prosecution may attack its weight.
Court orders
#- 1.The appeal is dismissed
- 2.The ruling of the High Court (Chitembwe, J.) dated 17th March 2016 allowing the respondent to adduce additional evidence is left undisturbed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Malindi
- Misc. Criminal Application No. 25 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over interlocutory appeals from the High Court exercising appellate/revisional powers under Section 358(1) of the Criminal Procedure Code
Relief refused
#The appellant's prayer to set aside the High Court's decision permitting admission of additional forensic evidence
The respondent satisfied the Elgood principles; the evidence was not available at trial and its admission actualized the respondent's right to a fair trial under Article 50 of the Constitution
Costs
No order as to costs is recorded in the judgment.
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.
For those reasons, we find no merit in the appeal and it is hereby dismissed.
This Court while discussing its power to admit additional evidence under Rule 29 (1) of the Court of Appeal Rules in Samuel Kungu Kamau vs. Republic [2015] eKLR
we believe that the considerations set out thereunder are applicable where the High Court is considering a similar application of admission of additional evidence under Section 385(1) of the Criminal Procedure Code.
Having used what we consider an alternative legal avenue by making an application to the UK Court Section 21 of the Mutual Legal Assistance Act was not applicable.
It is trite that the admission of additional evidence does not mean that the same is conclusive proof of the same, the court is still under a duty to look at the probative value of the evidence.
Issues in the judgment
#The judgment refers to the same statutory provision as both Section 358(1) and Section 385(1) of the Criminal Procedure Code in consecutive passages, an internal inconsistency in section numbering.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Ali Babitu Kololo [2017] KECA 133 (KLR)", Case Analysis (2017). Criminal Appeal No. 8 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/133/eng@2017-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.