PMK v Republic [2022] KEHC 2844 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

CRIMINAL APPEAL NO. 30 OF 2019

PMK........................................................................................APPELLANT

VERSUS

REPUBLIC..........................................................................RESPONDENT

RULING

1. The appellant seeks to adduce fresh evidence. He intends to prove that during his trial and conviction he was a minor aged 17, a fact that was not considered by the lower court. He also states that he did not have benefit of counsel and was held in an adult prison for a long duration.

2. Those matters are set out at length in a notice of motion dated 25th May 2021 and the affidavit of his counsel of even date. A Child Health Card showing his birthday to be 17th December 2000 is annexed. Learned counsel submitted that the new evidence would impact the sentence handed down. In a synopsis, I heard the appellant to say that he did not receive a fair trial.

3. The motion is contested by the Republic. There is a replying affidavit sworn by Ms. Anne Gakumu, Senior Principal Public Prosecutor, on 6th October 2021. In a nutshell, she states that the appellant was always in possession of the evidence; that he received a fair trial; and, that the motion is an attempt to plug loopholes in his defence.

4. On 8th December 2021, I heard submissions from learned counsel for the appellant and respondent.

5. I take the following view of the matter. The main appeal is pending. Grounds 3 (i) to (iii) of the amended grounds of appeal raise some of the issues in the present motion. I thus decline the invitation to comment on the merits of the appeal at this stage. But I can safely state that the appellant was adjudged guilty of defiling an 8-year-old girl contrary to the Sexual Offences Act and sentenced to life imprisonment. The appeal is against both the conviction and sentence.

6. Section 358 of the Criminal Procedure Code allows the appellate court to admit new evidence if “it thinks the additional evidence is necessary”.The legal principles were well stated in Elgood v Republic [1968] E.A. 274. See also Republic v Ali Babitu Kololo, Court of Appeal, Malindi, Criminal Appeal 8 of 2017 [2017] eKLR. One important consideration is that the “evidence sought to be called must be evidence which was not available at the trial”

7.  In this case, there is no claim that the Child Health Card above was not available during the course of the trial. The less I say about it the better. But on that ground alone, I am not satisfied that there are sufficient grounds to adduce fresh evidence or that the additional evidence is necessary.

8. The upshot is that the appellant’s notice of motion dated 25th May 2021 is hereby dismissed.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 26TH DAY OF JANUARY 2022.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of-

Ms. Muritu holding brief for Mr. Ndungu for the appellant instructed by Tripple N W & Company Advocates LLP.

Ms. A. Otieno for the Republic instructed by the Office of the Director of Public Prosecutions.

Ms. Susan Waiganjo, Court Assistant.