[2009] KEHC 3095 (KLR)
The court found that the conviction was unsafe because the only evidence linking the appellant to the offence was the complainant's purported voice identification, which was unreliable as there was no evidence that the complainant knew the appellant's voice before the incident. Furthermore, the prosecution failed to...
Source-derived case information.
- Citation
- [2009] KEHC 3095 (KLR)
- Parties
- Appellant: Alfred Shivisi Shikoli; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 44 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- JL Osiemo, PM Mwilu
- Legal Topics
- Robbery With Violence, Identification Evidence, Voice Identification, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Shivisi Shikoli
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for robbery with violence was supported by sufficient evidence.
- 2 Whether the identification of the appellant was reliable and met the legal threshold.
- 3 Whether the prosecution proved its case beyond reasonable doubt.
Ratio Decidendi
The court found that the conviction was unsafe because the only evidence linking the appellant to the offence was the complainant's purported voice identification, which was unreliable as there was no evidence that the complainant knew the appellant's voice before the incident. Furthermore, the prosecution failed to call the investigating officer or any of the members of the public who arrested the appellant, leaving significant gaps in the chain of evidence. The State conceded that these deficiencies rendered the conviction unsustainable. Consequently, the court allowed the appeal, quashed the conviction, set aside the sentence, and ordered the appellant's immediate release unless...
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Criminal Appeal 44 of 2007
ALFRED SHIVISI SHIKOLI ………………………......… APPELLANT
VERSUS
REPUBLIC ……………………….…………………… RESPONDENT
JUDGEMENT
The Appellant Alfred Shivisi Shikoli (the Appellant) was charged in the Principal Magistrate’s Court at Kapsabet with two counts, and after his trial he was acquitted on the first count of robbery with violence contrary to Section 296 (2) of the Penal Code, but was convicted on the second count of robbery with violence contrary to Section 296 (2) of the Penal Code. He was thereafter sentenced to the mandatory death sentence in respect of the later count.
The particulars contained in that charge were that on 20th day of May, 2005 at Kipsugur Area in Nandi North District of the Rift Valley Province, jointly with others not before Court being armed with a dangerous weapon namely panga robbed Patrick Aluvanga of cash Shs. 280/= and at or immediately before or immediately after the time of the robbery used actual violence to the said Patrick Aluvanga. And in count two at the same time and place he is said to have robbed Wickliffe Opiyo of cash Shs. 100/= and immediately before or immediately after the time of such robbery used actual violence to the said Wickliffe Opiyo.
The Appellant has now appealed against both conviction and sentence. Mr. Chirchir, the learned State Counsel readily conceded the appeal on the grounds that the Complainant, the only relevant witness was not in a position to see and recognize the Appellant. The Complainant testified that he was able to identify the Appellant through his voice but he never said if he knew the Appellant before. There was no any other evidence to connect the Appellant to the commission of the offence. He also conceded that it was not quite clear from the record how the Appellant came to be arrested. The Investigating Officer was never called to testify nor any of the members of the public who arrested the Appellant and took him to Kapsabet Police Station.
We entirely agree with Mr. Chirchir and that being the view we take of the matter, we allow the Appeal, quash the conviction, set aside the sentence of death and order that the Appellant be released from prison forthwith unless held for some other lawful cause.
DATED AND DELIVERED AT ELDORET THIS 30TH DAY OF JULY, 2009.
………………….
J. L. A. OSIEMO
JUDGE
………………….
P. M. MWILU
JUDGE