[2008] KEHC 2165 (KLR)
The court found that the identification of the appellant was not proper as the description was not given to the police and the alleged distinguishing marks were not specified. Furthermore, the appellant's explanation regarding the ownership of the radio and shoes was plausible and uncontested. The prosecution failed...
Source-derived case information.
- Citation
- [2008] KEHC 2165 (KLR)
- Parties
- Appellant: Andrew Ewaton; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 120 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
- Judges
- DK Maraga, CN Mugo
- Legal Topics
- Identification Evidence, Handling Stolen Property, Capital Robbery, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Ewaton
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the identification of the appellant was proper and sufficient to sustain a conviction.
- 2 Whether the items found with the appellant were indeed stolen property or belonged to him.
Ratio Decidendi
The court found that the identification of the appellant was not proper as the description was not given to the police and the alleged distinguishing marks were not specified. Furthermore, the appellant's explanation regarding the ownership of the radio and shoes was plausible and uncontested. The prosecution failed to discharge its burden of proof beyond reasonable doubt both as to identification and as to the ownership of the alleged stolen property. As a result, the conviction was unsafe and could not be allowed to stand.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU Criminal Appeal 120 of 2006
ANDREW EWATON….……………….…………APPELLANT
VERSUS
REPUBLIC…………………………….………..RESPONDENT
JUDGMENT
ANDREW EWATON (the Appellant) was with two others charged with three counts of capital robbery. In the alternative the Appellant was alone charged with handling stolen property contrary to Section 322(2) of the Penal code. He was convicted on counts one and two and sentenced to death. He has appealed against both the conviction and sentence. At the hearing on 3rd July 2007, Mr. Mugambi, learned state counsel, conceded the appeal on the ground that the Appellant’s identification was in doubt and that the alleged stolen items that he was found with may very well have been his.
Having ourselves read the record we agree that the identification of the Appellant was not proper. The description of the Appellant was not given to the police and the marks the complainant said the Appellant has on his face were not specified. The Appellant maintained that the radio he was found with was his and he pointed to an identifying mark on it. He also said that the shoes he was found with were given to him by the complainant’s son and that was not contested.
On these grounds we agree with Mr. Mugambi that the Appellant's conviction is on shaky ground and cannot therefore be allowed to stand. Consequently we allow this appeal, quash the conviction and set aside the sentence. The Appellant shall be set free forthwith unless otherwise lawfully held.
DATED and delivered at Nakuru on this 18th day of July, 2008.
D. K. MARAGA
JUDGE
M. MUGO
JUDGE