MKB v Republic (Criminal Application 263 of 2018) [2023] KECA 343 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a death-row appellant to present his birth certificate as new evidence showing he was a minor when convicted.
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 new and additional evidence (his birth certificate and complimentary evidence) on appeal
- 2.Whether the applicant should be granted leave to file a supplementary memorandum and grounds of appeal and further submissions
- 3.Whether the lower court proceedings should be declared a mistrial on account of the applicant's age not being considered in sentencing
Key legal issues
#Whether the applicant's proposed additional evidence (birth certificate showing he was a minor at conviction) meets the Article 50(6) threshold of new and compelling evidence
Yes. The birth certificate, though the respondent questions its authenticity, shows the applicant was born on January 26, 1994 and was therefore about 16 years old when convicted and sentenced on December 8, 2010. The evidence was not available at trial despite due diligence and is capable of affecting the sentence.
The Court applied the Supreme Court's test in Tom Martins Kibisu v Republic. The applicant was unrepresented at trial and on the later part of his High Court appeal, could not have procured the birth certificate before conviction, and the certificate is material because if he was a minor the mandatory sentence of death could not lawfully have been imposed. The respondent conceded prayers 1 and 2 and would have an opportunity to cross-examine. The Court was satisfied the motion met the threshold.
Whether the court could declare the proceedings a mistrial on this application
No. A declaration of mistrial is not capable of determination in an application for leave to adduce additional evidence and file supplementary grounds; the appeal should instead be heard on a priority basis.
The applicant's prayer 3 sought a declaration that the lower court case amounted to a mistrial for failure to consider his age in sentencing. The Court held that such a declaration could only properly be made upon hearing of the appeal itself, and confined itself at this interlocutory stage to allowing the additional evidence and directing a priority listing. This is a ruling on scope of interlocutory relief, not a final determination on the mistrial claim.
Legal principles established
#- Under Article 50(6) of the Constitution, 'new evidence' is evidence which was not available at the time of trial and which, despite exercise of due diligence, could not have been availed at the trial; 'compelling evidence' is evidence that would have been admissible at trial, of high probative value, capable of belief, and which would probably have led to a different verdict.
- A court considering whether evidence is new and compelling must ascertain that it is prima facie material to, or capable of affecting or varying, the charges, the trial process, the conviction or the sentence.
- A declaration of mistrial cannot be granted in an application for leave to adduce additional evidence; such relief falls for determination at the hearing of the appeal itself.
Court orders
#- 1.The applicant's motion dated July 19, 2022 is allowed in terms of prayers 1 and 2 thereof
- 2.Leave granted to the applicant to adduce new evidence, being his certificate of birth plus complimentary evidence, before this Court or the trial court
- 3.Leave granted to the applicant to file a supplementary memorandum and grounds of appeal and further complimentary submissions to the appeal
- 4.The registry is directed to list the applicant's appeal for hearing on a priority basis
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (on appeal from the Chief Magistrate's Court at Eldoret)
- Chief Magistrate's Court at Eldoret Criminal Case No. 654 of 2010
- Jurisdiction invoked
- Article 50(6)(b) of the Constitution; Sections 29, 65 and 66 of the Court of Appeal Rules 2010
Relief refused
#Prayer 3 – a declaration that the lower court proceedings amounted to a mistrial
A declaration of mistrial cannot be determined in an application of this nature; it is a matter for the hearing of the appeal
Costs
No express costs order made in the ruling; the applicant had sought that there be no order as to costs
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 merit in the applicant's motion dated July 19, 2022 and allow the same in terms of prayer 1 and 2 thereof.
All we can do at the moment is to direct the registry to list the applicant's appeal for hearing on a priority basis.
From the circumstances of this case we are satisfied that the applicant's motion meets the threshold set out by the Supreme Court in the Tom Martins Kibusu case (supra), for adduction of new evidence pursuant to Article 50 (6) of the Constitution.
This would mean that by the time the applicant was convicted and sentenced for the ofience of attempted robbery with violence on December 8, 2010, he was about 16 years old.
Issues in the judgment
#The Court of Appeal number of the appeal before the Court is not stated anywhere in the ruling; only the lower court case numbers (Eldoret Chief Magistrate's Criminal Case No. 654 of 2010 and Criminal Case No. 3630 of 2009) appear.
The judgment contains recurring typographical errors (e.g. 'ofience' for 'offence', 'sufier' for 'suffer', 'afidavit' for 'affidavit'), and paragraph 5 sets out prayers not clearly delineated from the depositions.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MKB v Republic (Criminal Application 263 of 2018) [2023] KECA 343 (KLR)", Case Analysis (2023). Criminal Appeal (application dated 19th July 2022) – Court of Appeal, Nakuru. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/343/eng@2023-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.