Republic v Janet Nasimiyu & 2 others [2019] KECA 664 (KLR)
The bottom line
#The Court of Appeal refused the State's request to add new post mortem evidence on appeal because it failed to gather it during the four-year trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain the application for leave to adduce additional evidence under Rule 29
- 2.Whether the evidence sought to be adduced could not, with reasonable diligence, have been obtained for use at the trial
- 3.Whether the additional evidence would probably have an important influence on the result of the appeal
- 4.Whether the evidence sought to be adduced is apparently credible
Key legal issues
#Jurisdiction to admit additional evidence under Rule 29
The Court has jurisdiction to entertain the application because there is a pending appeal from the High Court's conviction of the respondents for murder in its original jurisdiction.
Rule 29(1) applies to appeals from a superior court acting in its original jurisdiction. Murder convictions are such decisions, and on such an appeal the Court of Appeal sits as a first appellate court. The court adopted its earlier decision in Brown Tunje Ndago v Republic, which confines the power to that situation. The first limb of the test was therefore satisfied.
Whether the evidence could have been obtained with reasonable diligence
The post mortem report and the pathologist's evidence were always available to the prosecution; eight adjournments were granted; due diligence was not shown.
The trial lasted about four years, and the pathologist, the prosecution office and the police station were all based in Bungoma where the trial was conducted. The trial court adjourned eight times to enable prosecution witnesses, including the pathologist, to attend. The prosecution never sought a date convenient to both the trial court and the pathologist, and it conceded the report was at all times available. The diligence limb failed.
Whether the additional evidence would have an important influence on the appeal
The applicant failed to demonstrate how the pathologist's evidence or the post mortem report would affect the outcome of the appeal.
The court noted that the applicant made no submission connecting the post mortem evidence to any issue in the pending appeal, such as the cause of death or the state of the body, in a way that would change the result. This failure was independent of the diligence failure and independently justified refusal.
Legal principles established
#- The Court of Appeal may admit additional evidence under Rule 29 only where it is seized of a pending appeal from a superior court exercising original jurisdiction, and the applicant must establish reasonable diligence, material influence on the appeal, and credibility.
- The power to receive additional evidence on appeal must be used sparingly and must not be employed to fill gaps in a party's case.
Court orders
#- 1.The application for leave to adduce additional evidence is dismissed for lack of merit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- H.C.Cr. A No. 16 of 2012
- Jurisdiction invoked
- Rule 29(1)(b) and (c) of the Court of Appeal Rules; pending first appeal from the High Court exercising original jurisdiction
Relief refused
#Leave to adduce the pathologist's evidence and post mortem report as additional evidence by affidavit or oral testimony
The evidence was within the applicant's knowledge at trial; due diligence was not exercised over a four-year trial; and the applicant failed to show it would significantly influence the appeal
Costs
No costs order made in the ruling.
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.
Accordingly, we find that this application lacks merit and it is hereby dismissed.
the applicant must establish: that the Court has jurisdiction to entertain the application; that the evidence sought to be adduced could not have been obtained with reasonable diligence during the trial; that the evidence may have an important influence on the outcome of the appeal; and that the evidence sought to be adduced is credible.
the unfettered power of the Court to receive additional evidence should always be used sparingly and only where it is shown that the evidence is fresh and would make a significant impact in the determination of the appeal
This Court has jurisdiction to admit additional evidence only where there is a pending appeal in this Court from a decision of the superior court in its original jurisdiction such as where the superior court has convicted a person for murder or treason.
The Rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence.
Issues in the judgment
#The case is cited as both 'Wanje v Saikwa [1984] KLR 275' and 'Wanjie v Saikwa (supra)' with inconsistent spelling of the first party's name within the same judgment.
No costs order appears in the final orders despite the contested interlocutory application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Janet Nasimiyu & 2 others [2019] KECA 664 (KLR)", Case Analysis (2019). Criminal Appeal (Application) No. 67 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/664/eng@2019-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.