Why new evidence in second appeal cases is inadmissible by Kenyan courts

The bench at the Courts of Appeal. (kulanpost)

By:  Hassan Mahat

It’s a customary and a codified legal practice in all global jurisdictions that new evidence in second appeal cases is inadmissible by courts. Kenya is no exception as The Kenya Evidence Act prohibits the introduction of new evidence in second appeal cases.

The Court of appeal and Supreme Court are normally referred to as the courts of Law as appeals made to these courts can be made only matters of law.

However, there exist some exception to this general rule that courts have adopted through the years. First, the applicant must also show under this head that the discovery could not have been made earlier despite the exercise of due diligence on their part. You have to show the court that you were not hiding this evidence under the table so that you can use it to have an opportunity to have the evidence to be looked at again. You have to prove to the court that you exercised due diligence and that information you never found it, you did not know about it, it has just come to your attention. This of course implies that if the other side can satisfy the court that this information was always in your possession and power, then you will not be able to rely on this particular ground.

Secondly, you must also prove to the court that you were never given time to adduce the said contended evidence that is deemed to be so integral on decision making by the judge.The applicant won’t be allowed to introduce a new evidence in an appeal case when he/she had ample time to adduce the evidence at the lower court.

Third, the appeal courts have been established as the courts of Law. But this doesn’t mean that their decision can only be swayed when the judgement in the lower court made an error in law. These courts also look into errors of facts apparent on the face of the record and discovery of new evidence.

If the judge in the lower court made an error that deeply goes down to the roots of determination of the case and reaching to the decision, the review, might be allowed. If the courts are satisfied with review, the applicant may be allowed to introduce the new evidence.

Apparently, the third exception basically depends on the first two. The fruitful argument of the first two exceptions makes this point strong. In the case of The Republic vs Koigi wa Wamwere trial, tried by Justice Tuiyot where Koigiwa Wamwere was charged with robbery with violence and actually sentenced for robbery with violence.

But Justice Tuiyot sentenced him to life imprisonment. This was an error on the face of the record. All you have to do, you don’t have to travel beyond the record to establish that it was an error. All you have to do is say this is the charge; robbery with violence, and this is the punishment prescribed for the offence. An error apparent on the face of the record is an error that you do not have to travel beyond the record to be able to establish.

It is one that you don’t even have to make an argument. The moment you have to make a long submission and supporting authority to point out there is an error. An error apparent is one that stares you in the face.

In the recent decision by the Court of Appeal in the Martha Karua vs Ann Waiguru case, Narc Kenya party leader Martha Karua lost her bid to introduce new evidence in the case she has filed challenging the High Court verdict which upheld the election of Kirinyaga Governor Anne Waiguru.

Court of Appeal Judges Roselyn Nambuye, Hannah Okwengu, and GatembuKairu struck out the evidence saying Ms Karua has not provided sufficient grounds to show why the evidence should be allowed. The court held that the introduction of new evidence will be prejudicial to the main appeal if allowed. The new evidence, contained in a flash disk, had been rejected by the High Court but Ms Karua felt it was important in the appeal.

Conclusively, it’s now evident that appeal courts only allow the introduction of new evidence under few and scrutinized circumstances.

The opinion expressed here are those of the writer and do not define the editorial stand of Kulan Post.