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Samuel Kungu Kamau v. Republic

(2015) JELR 94899 (CA)

Court of Appeal  •  Criminal Appeal 29 of 2015  •  6 Nov 2015  •  Kenya

Alnashir Ramazanali Magan Visram, Paul Kihara Kariuki, Mohammed Abdullahi Warsame



Rule 29 (1)(b) of the Court of Appeal Rules gives this Court the power to take additional evidence, or to direct that additional evidence be taken by a trial court. This is an exercise in discretion, meaning that parties must give the Court sufficient reason to allow an application to take additional evidence.

The power of the court to take additional evidence has been adjudicated upon in several decisions. In Karmali Tarmohamed and Anor. v. I.H.Lakhani [1958] EA 567 the predecessor to this Court held that:

1“(i) except on grounds of fraud or surprise, the general rule is that an appellate court will not admit fresh evidence, unless it was not available to the party seeking to use it at the trial, or that reasonable diligence would not have made it so available.”

In The Administrator, HH The Aga Khan Platinum Jubilee Hospital v. Munyambu [1985] KLR 127 it was held that: -

“1. In exercising its discretion to grant leave to adduce additional evidence under rule 29

(1) (b)…

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