RULING OF THE COURT
Before us is a motion on notice dated 2nd August, 2012. It is expressed to be brought under section 3A and B of the Appellate Jurisdiction Act as well as rule 29 of the Court of Appeal Rules. The applicant is essentially seeking leave of this Court to adduce additional and new evidence by filing an affidavit containing photographic evidence and to call two witnesses, namely Mr. Monda, a State Counsel and Mr. Issa, the investigating officer of the case, the subject of the appeal and the instant application.
The grounds in support of the application are that, this was a classical case of mistaken identity evidence where honest but mistaken witnesses gave evidence in court that led to the conviction of the applicant by the Principal Magistrate's Court, Kwale in Criminal Case No. 2232 of 2002; that much as the trial court warned itself of the dangers of relying on the evidence of a single witness in convicting the applicant and his co-accused, the warning was however in …