1. The Appellant has moved the Court by the Notice of Motion dated 05th June 2026 brought under Article 50 of the Constitution and section 358 of the Criminal Procedure Code seeking leave to adduce additional evidence in this appeal. The application is supported by the affidavit sworn by the Appellant on the same date. He seeks to produce a certified copy of a Birth Certificate which he contends is material to the determination of the appeal. He further deposes that the document was not available during the trial as it remained in the custody of his relatives while he was in custody.
2. The application is premised on the contention that the proposed evidence was unavailable during the trial and that its admission is necessary to enable the Court to effectually and completely determine the issues arising in the appeal.
3. The application is opposed. In the Respondent's written submissions dated 24th June 2026, learned prosecution counsel contends that the application is misconceived, frivolous and an abuse of the court process. It is submitted that the Birth Certificate sought to be introduced was never mentioned during the trial and cannot therefore qualify as new or compelling evidence. The Respondent further argues that the Appellant's explanation that the document remained in the custody of his relatives while he was in custody is untenable, as he could have informed the trial court of its existence and sought appropriate directions for its production. It is also submitted that the Appellant has failed to satisfy the requirements for the admission of additional evidence under section 358 of the Criminal Procedure Code and that his reliance on Article 50(6) of the Constitution and other statutory provisions is misplaced. The Respondent accordingly urges the Court to dismiss the application and direct that the appeal proceeds to hearing on its merits.
4. The issue falling for determination is whether the Appellant has established a proper basis for the admission of additional evidence at the appellate stage.
5. The jurisdiction of the High Court to receive additional evidence on appeal is conferred by section 358(1) of the Criminal Procedure Code, which empowers the appellate court, where it considers additional evidence necessary, to receive such evidence itself or direct that it be taken by a subordinate court.
6. The principles governing the exercise of the jurisdiction under section 358(1) of the Criminal Procedure Code were authoritatively stated by the Supreme Court in Kibisu v Republic [2014] KESC 55 (KLR), where the Court held that "new evidence" means evidence which was not available at the time of trial and which, despite the exercise of due diligence, could not have been availed at the trial, while "compelling evidence" means evidence that would have been admissible at the trial, is of high probative value, is capable of belief and which, if adduced at the trial, would probably have led to a different verdict. The Court further held that, in determining whether evidence is new and compelling, the appellate court must be satisfied that the evidence is, prima facie, material to, or capable of affecting, the criminal trial process, the conviction entered or the sentence imposed.
7. The proposed additional evidence consists of a certified copy of a Birth Certificate bearing the Appellant's name and indicating his date of birth. The Appellant contends that the document is material to the issues arising in the appeal and explains that it was not produced during the trial because it remained in the custody of his relatives while he was in custody.
8. At this stage, the Court is not called upon to determine the authenticity, admissibility or evidential weight of the proposed evidence, nor is it required to make any finding regarding the factual matters which the document is intended to prove. Those are matters that can only be determined after the evidence has been formally received and the parties have been afforded an opportunity to test it through examination, cross-examination and submissions.
9. Having considered the application and the material placed before the Court, I am satisfied that the proposed evidence is directly relevant to an issue arising in the appeal and is capable, depending on the findings ultimately made as to its authenticity and probative value, of having a bearing on the determination of the appeal. In the interests of justice, the evidence ought to be received so that the appeal may be determined on a complete evidentiary record.
10. Consequently, I find merit in the Notice of Motion dated 05th June 2026 and make the following orders:
1) Leave is hereby granted to the Appellant to adduce additional evidence in this appeal.
2) The Appellant shall, within seven (7) days from the date hereof, file and serve upon the Respondent the proposed additional evidence together with the witness statement or statements of the witness or witnesses through whom the evidence is intended to be produced.
3) The Respondent shall, within seven (7) days of service, file and serve upon the Appellant any witness statement, affidavit or other rebuttal evidence, if any, upon which it intends to rely.
4) The matter shall be mentioned on 29th July 2026 to confirm compliance with these directions and for further directions on the hearing of the additional evidence.
2. The application is premised on the contention that the proposed evidence was unavailable during the trial and that its admission is necessary to enable the Court to effectually and completely determine the issues arising in the appeal.
3. The application is opposed. In the Respondent's written submissions dated 24th June 2026, learned prosecution counsel contends that the application is misconceived, frivolous and an abuse of the court process. It is submitted that the Birth Certificate sought to be introduced was never mentioned during the trial and cannot therefore qualify as new or compelling evidence. The Respondent further argues that the Appellant's explanation that the document remained in the custody of his relatives while he was in custody is untenable, as he could have informed the trial court of its existence and sought appropriate directions for its production. It is also submitted that the Appellant has failed to satisfy the requirements for the admission of additional evidence under section 358 of the Criminal Procedure Code and that his reliance on Article 50(6) of the Constitution and other statutory provisions is misplaced. The Respondent accordingly urges the Court to dismiss the application and direct that the appeal proceeds to hearing on its merits.
4. The issue falling for determination is whether the Appellant has established a proper basis for the admission of additional evidence at the appellate stage.
5. The jurisdiction of the High Court to receive additional evidence on appeal is conferred by section 358(1) of the Criminal Procedure Code, which empowers the appellate court, where it considers additional evidence necessary, to receive such evidence itself or direct that it be taken by a subordinate court.
6. The principles governing the exercise of the jurisdiction under section 358(1) of the Criminal Procedure Code were authoritatively stated by the Supreme Court in Kibisu v Republic [2014] KESC 55 (KLR), where the Court held that "new evidence" means evidence which was not available at the time of trial and which, despite the exercise of due diligence, could not have been availed at the trial, while "compelling evidence" means evidence that would have been admissible at the trial, is of high probative value, is capable of belief and which, if adduced at the trial, would probably have led to a different verdict. The Court further held that, in determining whether evidence is new and compelling, the appellate court must be satisfied that the evidence is, prima facie, material to, or capable of affecting, the criminal trial process, the conviction entered or the sentence imposed.
7. The proposed additional evidence consists of a certified copy of a Birth Certificate bearing the Appellant's name and indicating his date of birth. The Appellant contends that the document is material to the issues arising in the appeal and explains that it was not produced during the trial because it remained in the custody of his relatives while he was in custody.
8. At this stage, the Court is not called upon to determine the authenticity, admissibility or evidential weight of the proposed evidence, nor is it required to make any finding regarding the factual matters which the document is intended to prove. Those are matters that can only be determined after the evidence has been formally received and the parties have been afforded an opportunity to test it through examination, cross-examination and submissions.
9. Having considered the application and the material placed before the Court, I am satisfied that the proposed evidence is directly relevant to an issue arising in the appeal and is capable, depending on the findings ultimately made as to its authenticity and probative value, of having a bearing on the determination of the appeal. In the interests of justice, the evidence ought to be received so that the appeal may be determined on a complete evidentiary record.
10. Consequently, I find merit in the Notice of Motion dated 05th June 2026 and make the following orders:
1) Leave is hereby granted to the Appellant to adduce additional evidence in this appeal.
2) The Appellant shall, within seven (7) days from the date hereof, file and serve upon the Respondent the proposed additional evidence together with the witness statement or statements of the witness or witnesses through whom the evidence is intended to be produced.
3) The Respondent shall, within seven (7) days of service, file and serve upon the Appellant any witness statement, affidavit or other rebuttal evidence, if any, upon which it intends to rely.
4) The matter shall be mentioned on 29th July 2026 to confirm compliance with these directions and for further directions on the hearing of the additional evidence.