REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
CRIMINAL APPEAL NO. E025 OF 2025
(CORAM: HON. CHARLES M. KARIUKI – J)
SAMSON MPAYIAN RINKA….…………………………1 ST APPELLANT/APPLICANT
STEPHEN KINYAMAL MODEKAI……………………….2 ND APPELLANT/APPLICANT
VERSUS
REPUBLIC……………………………………………………………………. RESPONDENT
RULING
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) Before this Court is the Notice of Motion dated 21 st April 2026 brought by the appellants/applicants, Samson Mpayiani Rinka and Stephen Kinyamal Modekai, pursuant to Section 358 of the Criminal Procedure Code, Cap. 75 Laws of Kenya. The applicants seek leave to adduce additional evidence in support of their pending appeal against conviction and sentence arising from Criminal Case No. E038 of 2025.
2) The additional evidence sought to be introduced comprises a copy of a title deed for Land Parcel No. Transmara/Ololchani/237, an official search relating to Parcel No. 226, mutation forms demonstrating the cancellation of Parcel No. 226 and its subdivisions, together with the judgment and decree in Kilgoris ELC Case No. 10 of 2021.
3) The application is premised on the contention that the evidence was unavailable during the trial and only became available following the determination of ELC Case No. 10 of 2021 and the subsequent implementation of that judgment. The applicants argue that the Environment and Land Court declared them the rightful owners of Parcel No. Transmara/Ololchani/237, and that the title relied upon during the criminal proceedings has since been cancelled. They therefore contend that the proposed evidence is material and may substantially affect the outcome of the appeal.
4) The respondent opposes the application. The respondent contends that the proposed evidence concerns a different parcel of land from that on which the criminal charge was based, namely Parcel No. Transmara/Ololchani/1759. It is further argued that the proceedings in ELC Case No. 10 of 2021 were already produced during the trial and that the proposed evidence is neither relevant nor material to the issues arising in the appeal.
B. APPLICATION
i. Notice of motion
5) The Notice of Motion dated 21 st April 2026 is brought by the appellants, Samson Mpayiani Rinka, and Stephen Kinyamal Modekai, pursuant to Section 358 of the Criminal Procedure Code. The application seeks leave of the High Court to adduce additional evidence during the hearing of Criminal Appeal No. E025 of 2025. Specifically, the appellants pray that the court certify the application as urgent, grant leave to introduce new evidence on appeal, admit into evidence the judgment and decree in Kilgoris ELC Case No. 10 of 2021, admit a new title deed issued in favour of the 1 st appellant, and consider all annexed documents filed together with the supporting affidavit as part of the appellate record. The appellants further seek any other orders that the court may deem fit in the interests of justice.
6) The application is founded on the grounds that the 1st appellant was previously unable to obtain a title deed because ownership of the disputed land was the subject of ELC Case No. 10 of 2021. According to the applicants, the Environment and Land Court subsequently determined the dispute and declared the entire parcel of land to be the property of the 1 st appellant. Following that judgment, a title deed was issued in his favour.
7) The applicants contend that, at the time of their arrest, trial, and conviction in Criminal Case No. E038 of 2025 for the offence of forcible detainer, the title deed and related documents were unavailable because the land dispute had not yet been resolved. They therefore argue that the newly issued title deed constitutes important evidence demonstrating that the land in respect of which they were charged belongs to the 1 st appellant. They maintain that the additional evidence was unavailable during the trial and that it is in the interests of justice for the appellate court to admit it.
ii. Supporting affidavit
8) In the supporting affidavit sworn on 21 st April 2026, the 1 st appellant, Samson Mpayiani Rinka, deposes that he swears the affidavit on his own behalf and on behalf of the 2 nd appellant pursuant to a written authority annexed to the affidavit. He states that he was convicted in the Kilgoris Chief Magistrate’s Court in Criminal Case No. E038 of 2025 and that the conviction was based, in part, on a title deed which has since been cancelled following the judgment delivered on 25 th November 2025 in ELC Case No. 10 of 2021. He annexes a copy of the judgment and decree as evidence thereof.
9) The deponent further avers that a new title deed has subsequently been issued in his favour and annexes a copy thereof. He contends that the judgment of the Environment and Land Court and the new title deed were not available during the criminal trial and are therefore fresh evidence that is crucial to the fair determination of the appeal.
10) He states that the title deed relied upon during the trial has been cancelled and replaced by a title deed issued to him, thereby confirming that the land over which he was charged with the offence of forcible detainer has been declared to belong to him.
11) He also annexes various land registry documents showing the cancellation of the previous parcel numbers and implementation of the ELC decree. On those grounds, he urges the court to allow the application and admit the additional evidence for consideration in the appeal.
C. SUBMISSIONS
i. Appellants’ Submissions
12) The appellants submitted that their application seeks leave of the court to adduce additional evidence on appeal pursuant to Section 358 of the Criminal Procedure Code. They argued that the evidence sought to be introduced consists of the title deed for Land Parcel No. Transmara/Ololchani/237, an official search relating to Parcel No. 226, mutation forms showing the cancellation of Parcel No. 226 and its resultant subdivisions, and the judgment delivered in Kilgoris ELC Case No. E010 of 2021. According to the appellants, these documents are material to the determination of the appeal because they directly affect the ownership of the land that formed the basis of their conviction for the offence of forcible detainer.
13) The appellants submitted that they were convicted in Criminal Case No. E038 of 2025 on the basis that the complainant held a title deed to Land Parcel No. Transmara/Ololchani/1759, while they had no title to the disputed property. They maintained throughout the trial that the disputed land originated from Parcel No. 237 measuring eight acres, which had been allocated to them by the Adjudication Committee. They contended that irregular dealings at the Lands Office resulted in the reduction of their parcel and the creation of Parcel No. 226 and subsequent subdivisions, including Parcel No. 1759, in favour of other persons.
14) Counsel submitted that the Environment and Land Court in ELC Case No. E010 of 2021 subsequently determined the ownership dispute and found that the appellants were the rightful owners of Parcel No. 237. The court allegedly ordered the issuance of a title deed in favour of the appellants for the full eight acres. It directed the cancellation of Parcel No. 226 together with all subdivisions arising therefrom. It was argued that following the implementation of that judgment, the appellants were issued with a title deed for Parcel No. 237, and the title deed relied upon by the complainant in the criminal proceedings was cancelled.
15) The appellants further submitted that the proposed evidence satisfies the legal requirements for admission of additional evidence on appeal. Reliance was placed on Section 358(1) of the Criminal Procedure Code, Cap. 75 Laws of Kenya, which empowers the High Court to receive additional evidence where it considers such evidence necessary for the determination of an appeal. They argued that the evidence was unavailable at trial and could not have been obtained through reasonable diligence because the Environment and Land Court judgment, the cancellation of the disputed titles, and the issuance of a new title deed all occurred after the criminal proceedings had concluded.
16) The appellants also submitted that the additional evidence would have an important influence on the outcome of the appeal. They argued that the conviction for forcible detainer was premised on the finding that the complainant held a valid title while the appellants had none. In their view, the subsequent cancellation of Parcel No. 226 and its subdivisions, including Parcel No. 1759, coupled with the issuance of a title deed in favour of the 1 st appellant, fundamentally undermines the basis upon which the conviction was entered. They contended that the evidence demonstrates that the disputed land reverted to Parcel No. Transmara/Ololchani/237, and that they were occupying land that lawfully belonged to them. Consequently, they argued that admission of the evidence could reasonably lead to the setting aside of the conviction.
17) On the credibility of the evidence, the appellants submitted that the documents sought to be introduced are certified records obtained from the Lands Registry and a judgment of the Environment and Land Court. They argued that such documents constitute public records and are therefore presumed to be authentic under Section 79 of the Evidence Act, Cap. 80 Laws of Kenya. They maintained that the documents were reliable, genuine, and readily verifiable.
18) In conclusion, the appellants urged the court to find that the proposed evidence was unavailable at the time of trial, is credible, and is likely to have a significant bearing on the determination of the appeal. They therefore prayed that the application be allowed and that the additional evidence be admitted as part of the appellate record in the interests of justice
ii. Respondent’s Submissions
19) The respondent opposed the appellants’ application dated 21 st April 2026 seeking leave to adduce additional evidence on appeal. The respondent submitted that, although the High Court has jurisdiction under Section 358(1) of the Criminal Procedure Code to admit additional evidence on appeal where it considers such evidence necessary, that discretion must be exercised with caution and in accordance with well-established legal principles.
20) The respondent relied on Section 358(1) of the Criminal Procedure Code, Cap. 75 Laws of Kenya, which provides that in dealing with an appeal from a subordinate court, the High Court may, where it considers additional evidence necessary, record its reasons and either take such evidence itself or direct that a subordinate court take it.
21) Counsel further submitted that the principles governing the admission of additional evidence on appeal were authoritatively set out in Elgood v Regina [1968] EA 274, a decision regarded as the locus classicus on the subject. Reliance was also placed on the summary of those principles by Lord Parker CJ in R v Parks [1961] 3 All ER 633, where the court stated that the proposed evidence must not have been available at the trial, must be relevant to the issues in dispute, must be credible and capable of belief, and must be such that, had it been adduced at the trial together with the other evidence, it might reasonably have created doubt as to the guilt of the appellant.
22) The respondent also relied on the decision of the Supreme Court in Charles Maina Gitonga v Republic [2018] eKLR, where the court laid down the criteria for the admission of additional evidence on appeal. The Supreme Court held that additional evidence must be directly relevant to the matter before the court and in the interests of justice; it must be capable of influencing the result of the case; it must be shown that the evidence could not, with reasonable diligence, have been obtained for use at the trial; and it must bear a direct relation to the main issues in controversy.
23) Applying those principles to the present application, the respondent argued that the evidence sought to be introduced is irrelevant to the issues arising in the appeal. It was submitted that the appellants seek to introduce the judgment and decree in Kilgoris ELCC No. 10 of 2021, as well as a title deed for Land Parcel No. Transmara/Ololchani/237, and adjudication records relating to that parcel. According to the respondent, the criminal case and the appeal concern the offence of forcible detainer relating to Land Parcel No. Transmara/Ololchani/1759, which belonged jointly to the complainants, Mary Mumbi Ngeetai and Memusi Evans Mukoma. Counsel contended that the documents the appellants seek to introduce relate to a completely different parcel of land and arise from separate litigation involving different parties.
24) The respondent further submitted that the proposed evidence is not truly new. It was argued that the proceedings from ELCC No. 10 of 2021 had already been produced before the trial court as exhibits by both the prosecution and the defence. Specifically, the respondent noted that the appellants produced the proceedings as Defence Exhibit 7 while the prosecution produced related proceedings as Prosecution Exhibit 2. According to the respondent, those proceedings demonstrated that the land involved in ELCC No. 10 of 2021 was distinct from the parcel that formed the subject matter of the criminal charge.
25) Counsel emphasised that the judgment in ELCC No. 10 of 2021 does not refer to Land Parcel No. Transmara/Ololchani/1759, which was the property at the centre of the criminal proceedings. Further, the complainant in the criminal case was not a party to ELCC No. 10 of 2021. The respondent submitted that the parcel forming the basis of the criminal charge had previously been the subject of separate litigation in ELC Case No. 71B of 2008 between the 1st appellant and the complainant’s parents, who were then the registered proprietors of Land Parcel No. Transmara/Ololchani/1759. According to the respondent, the dispute was resolved against the 1st appellant, and the judgment therein was produced at trial as Prosecution Exhibit 6.
26) The respondent therefore maintained that although the judgment in ELCC No. 10 of 2021 may have been delivered after the conclusion of the criminal trial, it has no direct bearing on the issues arising in the appeal because it concerns a different parcel of land and different litigants. Consequently, the proposed evidence fails the test of relevance and materiality required for admission of additional evidence on appeal.
27) For those reasons, the respondent urged the court to find that the evidence sought to be introduced does not satisfy the principles set out in Elgood v Regina [1968] EA 274, R v Parks [1961] 3 All ER 633, and Charles Maina Gitonga v Republic [2018] eKLR, and accordingly dismiss the appellants’ application for leave to adduce additional evidence.
D. ISSUES FOR DETERMINATION
28) Having considered the application, the supporting affidavit, the rival submissions, and the applicable law, the following issue arises for determination:
i. Whether the applicants have satisfied the legal requirements for admission of additional evidence on appeal under Section 358 of the Criminal Procedure Code.
E. ANALYSIS AND DETERMINATION
29) The power of an appellate court to admit additional evidence is provided for under Section 358(1) of the Criminal Procedure Code, which states:
“(1) In dealing with an appeal from a subordinate court, the High Court, if it thinks additional evidence is necessary, shall record its reasons and may either take such evidence itself or direct it to be taken by a subordinate court.”
30) The discretion conferred by the statute is not to be exercised routinely. Courts have consistently held that additional evidence should only be admitted in exceptional circumstances and where the interests of justice demand.
31) The principles governing the admission of additional evidence on appeal were authoritatively stated in Elgood v Regina [1968] EA 274. The Court of Appeal for Eastern Africa adopted the principles set out in R v Parks [1961] 3 All ER 633, namely that the evidence sought to be introduced must not have been available at the trial, must be relevant to the issues before the court, must be credible, and must be capable of creating a reasonable doubt as to the guilt of the appellant had it been available during the trial.
32) More recently, the Supreme Court in Charles Maina Gitonga v Republic [2018] eKLR elaborated the applicable principles and held that additional evidence must be directly relevant to the matter before the court, capable of influencing the result of the case, unavailable despite the exercise of reasonable diligence, and must bear directly on the issues in controversy.
33) Applying the foregoing principles to the present case, this Court is satisfied that some of the documents sought to be introduced, particularly the judgment in ELC Case No. 10 of 2021 and the title deed issued pursuant thereto, were not available during the criminal trial. The applicants cannot, therefore, be faulted for failing to produce documents that were created after the conclusion of the proceedings before the trial court.
34) However, the mere fact that evidence was unavailable at trial is not by itself sufficient. The Court must further determine whether the evidence is relevant and material to the issues arising in the appeal.
35) The record shows that the appellants were convicted of forcible detainer in respect of Land Parcel No. Transmara/Ololchani/1759. The respondent contends that the documents that sought to be introduced relate to Parcel No. Transmara/Ololchani/237 and arise from separate civil proceedings involving different parties.
36) The Court has carefully considered the applicants’ contention that Parcel No. 1759 originated from Parcel No. 226, which in turn was allegedly cancelled and reverted to Parcel No. 237 pursuant to the judgment in ELC Case No. 10 of 2021. If that assertion is ultimately established, the judgment and consequential land records may have a bearing on the ownership history of the land that formed the basis of the criminal charge.
37) At this stage, the Court is not required to determine the evidential weight or probative value of the proposed evidence. That is a matter reserved for the hearing and determination of the substantive appeal. The Court is only required to determine whether the proposed evidence is sufficiently relevant and material to warrant its admission.
38) In the Court’s view, the judgment in ELC Case No. 10 of 2021, the title deed allegedly issued pursuant thereto, and the accompanying land registry records are documents which may assist the appellate court in arriving at a just determination of the appeal. The documents relate to the ownership and status of the land that the applicants claim formed the basis of their conviction. Consequently, they cannot be said to be manifestly irrelevant.
39) The Court is further satisfied that the documents are prima facie credible. They consist of a judgment of a court of competent jurisdiction and records emanating from the Lands Registry. Their authenticity can readily be verified and their evidential value assessed during the hearing of the appeal.
40) The overriding objective of the criminal process is the attainment of substantive justice. Where evidence has become available after trial and is capable of shedding light on matters central to the appeal, the court should lean in favour of receiving such evidence so that the appeal may be determined based on all relevant material.
F. DISPOSITION
41) In the circumstances, this Court is satisfied that the applicants have demonstrated sufficient grounds for the admission of the proposed additional evidence under Section 358 of the Criminal Procedure Code.
i. Accordingly, the Notice of Motion dated 21 st April 2026 is hereby allowed.
ii. The judgment and decree in Kilgoris ELC Case No. 10 of 2021, the title deed relating to Land Parcel No. Transmara/Ololchani/237, the official search and the accompanying land registry records annexed to the supporting affidavit are hereby admitted as additional evidence for purposes of the appeal.
iii. The respondents shall be at liberty to cross-examine the appellants on the same during hearing of the appeal.
iv. The ELC file Kilgoris No. 10 of 2021 be availed for the purposes of the appeal herein.
v. The admitted documents shall form part of the record of appeal and shall be considered during the hearing and determination of the substantive appeal.
42) It is so ordered.
DATED, SIGNED, AND DELIVERED AT KILGORIS, THIS 3RD DAY OF JULY,2026.
CHARLES KARIUKI
JUDGE
KILGORIS HCCRA NO. E025 OF 2025 Page 2 of 2
IN THE HIGH COURT OF KENYA AT KILGORIS
CRIMINAL APPEAL NO. E025 OF 2025
(CORAM: HON. CHARLES M. KARIUKI – J)
SAMSON MPAYIAN RINKA….…………………………1 ST APPELLANT/APPLICANT
STEPHEN KINYAMAL MODEKAI……………………….2 ND APPELLANT/APPLICANT
VERSUS
REPUBLIC……………………………………………………………………. RESPONDENT
RULING
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) Before this Court is the Notice of Motion dated 21 st April 2026 brought by the appellants/applicants, Samson Mpayiani Rinka and Stephen Kinyamal Modekai, pursuant to Section 358 of the Criminal Procedure Code, Cap. 75 Laws of Kenya. The applicants seek leave to adduce additional evidence in support of their pending appeal against conviction and sentence arising from Criminal Case No. E038 of 2025.
2) The additional evidence sought to be introduced comprises a copy of a title deed for Land Parcel No. Transmara/Ololchani/237, an official search relating to Parcel No. 226, mutation forms demonstrating the cancellation of Parcel No. 226 and its subdivisions, together with the judgment and decree in Kilgoris ELC Case No. 10 of 2021.
3) The application is premised on the contention that the evidence was unavailable during the trial and only became available following the determination of ELC Case No. 10 of 2021 and the subsequent implementation of that judgment. The applicants argue that the Environment and Land Court declared them the rightful owners of Parcel No. Transmara/Ololchani/237, and that the title relied upon during the criminal proceedings has since been cancelled. They therefore contend that the proposed evidence is material and may substantially affect the outcome of the appeal.
4) The respondent opposes the application. The respondent contends that the proposed evidence concerns a different parcel of land from that on which the criminal charge was based, namely Parcel No. Transmara/Ololchani/1759. It is further argued that the proceedings in ELC Case No. 10 of 2021 were already produced during the trial and that the proposed evidence is neither relevant nor material to the issues arising in the appeal.
B. APPLICATION
i. Notice of motion
5) The Notice of Motion dated 21 st April 2026 is brought by the appellants, Samson Mpayiani Rinka, and Stephen Kinyamal Modekai, pursuant to Section 358 of the Criminal Procedure Code. The application seeks leave of the High Court to adduce additional evidence during the hearing of Criminal Appeal No. E025 of 2025. Specifically, the appellants pray that the court certify the application as urgent, grant leave to introduce new evidence on appeal, admit into evidence the judgment and decree in Kilgoris ELC Case No. 10 of 2021, admit a new title deed issued in favour of the 1 st appellant, and consider all annexed documents filed together with the supporting affidavit as part of the appellate record. The appellants further seek any other orders that the court may deem fit in the interests of justice.
6) The application is founded on the grounds that the 1st appellant was previously unable to obtain a title deed because ownership of the disputed land was the subject of ELC Case No. 10 of 2021. According to the applicants, the Environment and Land Court subsequently determined the dispute and declared the entire parcel of land to be the property of the 1 st appellant. Following that judgment, a title deed was issued in his favour.
7) The applicants contend that, at the time of their arrest, trial, and conviction in Criminal Case No. E038 of 2025 for the offence of forcible detainer, the title deed and related documents were unavailable because the land dispute had not yet been resolved. They therefore argue that the newly issued title deed constitutes important evidence demonstrating that the land in respect of which they were charged belongs to the 1 st appellant. They maintain that the additional evidence was unavailable during the trial and that it is in the interests of justice for the appellate court to admit it.
ii. Supporting affidavit
8) In the supporting affidavit sworn on 21 st April 2026, the 1 st appellant, Samson Mpayiani Rinka, deposes that he swears the affidavit on his own behalf and on behalf of the 2 nd appellant pursuant to a written authority annexed to the affidavit. He states that he was convicted in the Kilgoris Chief Magistrate’s Court in Criminal Case No. E038 of 2025 and that the conviction was based, in part, on a title deed which has since been cancelled following the judgment delivered on 25 th November 2025 in ELC Case No. 10 of 2021. He annexes a copy of the judgment and decree as evidence thereof.
9) The deponent further avers that a new title deed has subsequently been issued in his favour and annexes a copy thereof. He contends that the judgment of the Environment and Land Court and the new title deed were not available during the criminal trial and are therefore fresh evidence that is crucial to the fair determination of the appeal.
10) He states that the title deed relied upon during the trial has been cancelled and replaced by a title deed issued to him, thereby confirming that the land over which he was charged with the offence of forcible detainer has been declared to belong to him.
11) He also annexes various land registry documents showing the cancellation of the previous parcel numbers and implementation of the ELC decree. On those grounds, he urges the court to allow the application and admit the additional evidence for consideration in the appeal.
C. SUBMISSIONS
i. Appellants’ Submissions
12) The appellants submitted that their application seeks leave of the court to adduce additional evidence on appeal pursuant to Section 358 of the Criminal Procedure Code. They argued that the evidence sought to be introduced consists of the title deed for Land Parcel No. Transmara/Ololchani/237, an official search relating to Parcel No. 226, mutation forms showing the cancellation of Parcel No. 226 and its resultant subdivisions, and the judgment delivered in Kilgoris ELC Case No. E010 of 2021. According to the appellants, these documents are material to the determination of the appeal because they directly affect the ownership of the land that formed the basis of their conviction for the offence of forcible detainer.
13) The appellants submitted that they were convicted in Criminal Case No. E038 of 2025 on the basis that the complainant held a title deed to Land Parcel No. Transmara/Ololchani/1759, while they had no title to the disputed property. They maintained throughout the trial that the disputed land originated from Parcel No. 237 measuring eight acres, which had been allocated to them by the Adjudication Committee. They contended that irregular dealings at the Lands Office resulted in the reduction of their parcel and the creation of Parcel No. 226 and subsequent subdivisions, including Parcel No. 1759, in favour of other persons.
14) Counsel submitted that the Environment and Land Court in ELC Case No. E010 of 2021 subsequently determined the ownership dispute and found that the appellants were the rightful owners of Parcel No. 237. The court allegedly ordered the issuance of a title deed in favour of the appellants for the full eight acres. It directed the cancellation of Parcel No. 226 together with all subdivisions arising therefrom. It was argued that following the implementation of that judgment, the appellants were issued with a title deed for Parcel No. 237, and the title deed relied upon by the complainant in the criminal proceedings was cancelled.
15) The appellants further submitted that the proposed evidence satisfies the legal requirements for admission of additional evidence on appeal. Reliance was placed on Section 358(1) of the Criminal Procedure Code, Cap. 75 Laws of Kenya, which empowers the High Court to receive additional evidence where it considers such evidence necessary for the determination of an appeal. They argued that the evidence was unavailable at trial and could not have been obtained through reasonable diligence because the Environment and Land Court judgment, the cancellation of the disputed titles, and the issuance of a new title deed all occurred after the criminal proceedings had concluded.
16) The appellants also submitted that the additional evidence would have an important influence on the outcome of the appeal. They argued that the conviction for forcible detainer was premised on the finding that the complainant held a valid title while the appellants had none. In their view, the subsequent cancellation of Parcel No. 226 and its subdivisions, including Parcel No. 1759, coupled with the issuance of a title deed in favour of the 1 st appellant, fundamentally undermines the basis upon which the conviction was entered. They contended that the evidence demonstrates that the disputed land reverted to Parcel No. Transmara/Ololchani/237, and that they were occupying land that lawfully belonged to them. Consequently, they argued that admission of the evidence could reasonably lead to the setting aside of the conviction.
17) On the credibility of the evidence, the appellants submitted that the documents sought to be introduced are certified records obtained from the Lands Registry and a judgment of the Environment and Land Court. They argued that such documents constitute public records and are therefore presumed to be authentic under Section 79 of the Evidence Act, Cap. 80 Laws of Kenya. They maintained that the documents were reliable, genuine, and readily verifiable.
18) In conclusion, the appellants urged the court to find that the proposed evidence was unavailable at the time of trial, is credible, and is likely to have a significant bearing on the determination of the appeal. They therefore prayed that the application be allowed and that the additional evidence be admitted as part of the appellate record in the interests of justice
ii. Respondent’s Submissions
19) The respondent opposed the appellants’ application dated 21 st April 2026 seeking leave to adduce additional evidence on appeal. The respondent submitted that, although the High Court has jurisdiction under Section 358(1) of the Criminal Procedure Code to admit additional evidence on appeal where it considers such evidence necessary, that discretion must be exercised with caution and in accordance with well-established legal principles.
20) The respondent relied on Section 358(1) of the Criminal Procedure Code, Cap. 75 Laws of Kenya, which provides that in dealing with an appeal from a subordinate court, the High Court may, where it considers additional evidence necessary, record its reasons and either take such evidence itself or direct that a subordinate court take it.
21) Counsel further submitted that the principles governing the admission of additional evidence on appeal were authoritatively set out in Elgood v Regina [1968] EA 274, a decision regarded as the locus classicus on the subject. Reliance was also placed on the summary of those principles by Lord Parker CJ in R v Parks [1961] 3 All ER 633, where the court stated that the proposed evidence must not have been available at the trial, must be relevant to the issues in dispute, must be credible and capable of belief, and must be such that, had it been adduced at the trial together with the other evidence, it might reasonably have created doubt as to the guilt of the appellant.
22) The respondent also relied on the decision of the Supreme Court in Charles Maina Gitonga v Republic [2018] eKLR, where the court laid down the criteria for the admission of additional evidence on appeal. The Supreme Court held that additional evidence must be directly relevant to the matter before the court and in the interests of justice; it must be capable of influencing the result of the case; it must be shown that the evidence could not, with reasonable diligence, have been obtained for use at the trial; and it must bear a direct relation to the main issues in controversy.
23) Applying those principles to the present application, the respondent argued that the evidence sought to be introduced is irrelevant to the issues arising in the appeal. It was submitted that the appellants seek to introduce the judgment and decree in Kilgoris ELCC No. 10 of 2021, as well as a title deed for Land Parcel No. Transmara/Ololchani/237, and adjudication records relating to that parcel. According to the respondent, the criminal case and the appeal concern the offence of forcible detainer relating to Land Parcel No. Transmara/Ololchani/1759, which belonged jointly to the complainants, Mary Mumbi Ngeetai and Memusi Evans Mukoma. Counsel contended that the documents the appellants seek to introduce relate to a completely different parcel of land and arise from separate litigation involving different parties.
24) The respondent further submitted that the proposed evidence is not truly new. It was argued that the proceedings from ELCC No. 10 of 2021 had already been produced before the trial court as exhibits by both the prosecution and the defence. Specifically, the respondent noted that the appellants produced the proceedings as Defence Exhibit 7 while the prosecution produced related proceedings as Prosecution Exhibit 2. According to the respondent, those proceedings demonstrated that the land involved in ELCC No. 10 of 2021 was distinct from the parcel that formed the subject matter of the criminal charge.
25) Counsel emphasised that the judgment in ELCC No. 10 of 2021 does not refer to Land Parcel No. Transmara/Ololchani/1759, which was the property at the centre of the criminal proceedings. Further, the complainant in the criminal case was not a party to ELCC No. 10 of 2021. The respondent submitted that the parcel forming the basis of the criminal charge had previously been the subject of separate litigation in ELC Case No. 71B of 2008 between the 1st appellant and the complainant’s parents, who were then the registered proprietors of Land Parcel No. Transmara/Ololchani/1759. According to the respondent, the dispute was resolved against the 1st appellant, and the judgment therein was produced at trial as Prosecution Exhibit 6.
26) The respondent therefore maintained that although the judgment in ELCC No. 10 of 2021 may have been delivered after the conclusion of the criminal trial, it has no direct bearing on the issues arising in the appeal because it concerns a different parcel of land and different litigants. Consequently, the proposed evidence fails the test of relevance and materiality required for admission of additional evidence on appeal.
27) For those reasons, the respondent urged the court to find that the evidence sought to be introduced does not satisfy the principles set out in Elgood v Regina [1968] EA 274, R v Parks [1961] 3 All ER 633, and Charles Maina Gitonga v Republic [2018] eKLR, and accordingly dismiss the appellants’ application for leave to adduce additional evidence.
D. ISSUES FOR DETERMINATION
28) Having considered the application, the supporting affidavit, the rival submissions, and the applicable law, the following issue arises for determination:
i. Whether the applicants have satisfied the legal requirements for admission of additional evidence on appeal under Section 358 of the Criminal Procedure Code.
E. ANALYSIS AND DETERMINATION
29) The power of an appellate court to admit additional evidence is provided for under Section 358(1) of the Criminal Procedure Code, which states:
“(1) In dealing with an appeal from a subordinate court, the High Court, if it thinks additional evidence is necessary, shall record its reasons and may either take such evidence itself or direct it to be taken by a subordinate court.”
30) The discretion conferred by the statute is not to be exercised routinely. Courts have consistently held that additional evidence should only be admitted in exceptional circumstances and where the interests of justice demand.
31) The principles governing the admission of additional evidence on appeal were authoritatively stated in Elgood v Regina [1968] EA 274. The Court of Appeal for Eastern Africa adopted the principles set out in R v Parks [1961] 3 All ER 633, namely that the evidence sought to be introduced must not have been available at the trial, must be relevant to the issues before the court, must be credible, and must be capable of creating a reasonable doubt as to the guilt of the appellant had it been available during the trial.
32) More recently, the Supreme Court in Charles Maina Gitonga v Republic [2018] eKLR elaborated the applicable principles and held that additional evidence must be directly relevant to the matter before the court, capable of influencing the result of the case, unavailable despite the exercise of reasonable diligence, and must bear directly on the issues in controversy.
33) Applying the foregoing principles to the present case, this Court is satisfied that some of the documents sought to be introduced, particularly the judgment in ELC Case No. 10 of 2021 and the title deed issued pursuant thereto, were not available during the criminal trial. The applicants cannot, therefore, be faulted for failing to produce documents that were created after the conclusion of the proceedings before the trial court.
34) However, the mere fact that evidence was unavailable at trial is not by itself sufficient. The Court must further determine whether the evidence is relevant and material to the issues arising in the appeal.
35) The record shows that the appellants were convicted of forcible detainer in respect of Land Parcel No. Transmara/Ololchani/1759. The respondent contends that the documents that sought to be introduced relate to Parcel No. Transmara/Ololchani/237 and arise from separate civil proceedings involving different parties.
36) The Court has carefully considered the applicants’ contention that Parcel No. 1759 originated from Parcel No. 226, which in turn was allegedly cancelled and reverted to Parcel No. 237 pursuant to the judgment in ELC Case No. 10 of 2021. If that assertion is ultimately established, the judgment and consequential land records may have a bearing on the ownership history of the land that formed the basis of the criminal charge.
37) At this stage, the Court is not required to determine the evidential weight or probative value of the proposed evidence. That is a matter reserved for the hearing and determination of the substantive appeal. The Court is only required to determine whether the proposed evidence is sufficiently relevant and material to warrant its admission.
38) In the Court’s view, the judgment in ELC Case No. 10 of 2021, the title deed allegedly issued pursuant thereto, and the accompanying land registry records are documents which may assist the appellate court in arriving at a just determination of the appeal. The documents relate to the ownership and status of the land that the applicants claim formed the basis of their conviction. Consequently, they cannot be said to be manifestly irrelevant.
39) The Court is further satisfied that the documents are prima facie credible. They consist of a judgment of a court of competent jurisdiction and records emanating from the Lands Registry. Their authenticity can readily be verified and their evidential value assessed during the hearing of the appeal.
40) The overriding objective of the criminal process is the attainment of substantive justice. Where evidence has become available after trial and is capable of shedding light on matters central to the appeal, the court should lean in favour of receiving such evidence so that the appeal may be determined based on all relevant material.
F. DISPOSITION
41) In the circumstances, this Court is satisfied that the applicants have demonstrated sufficient grounds for the admission of the proposed additional evidence under Section 358 of the Criminal Procedure Code.
i. Accordingly, the Notice of Motion dated 21 st April 2026 is hereby allowed.
ii. The judgment and decree in Kilgoris ELC Case No. 10 of 2021, the title deed relating to Land Parcel No. Transmara/Ololchani/237, the official search and the accompanying land registry records annexed to the supporting affidavit are hereby admitted as additional evidence for purposes of the appeal.
iii. The respondents shall be at liberty to cross-examine the appellants on the same during hearing of the appeal.
iv. The ELC file Kilgoris No. 10 of 2021 be availed for the purposes of the appeal herein.
v. The admitted documents shall form part of the record of appeal and shall be considered during the hearing and determination of the substantive appeal.
42) It is so ordered.
DATED, SIGNED, AND DELIVERED AT KILGORIS, THIS 3RD DAY OF JULY,2026.
CHARLES KARIUKI
JUDGE
KILGORIS HCCRA NO. E025 OF 2025 Page 2 of 2