[2002] KEHC 573 (KLR)
The court found that the conviction of the appellant was unsafe because the identification evidence provided by the prosecution witness (pw2) was unreliable. The witness was under duress, the events occurred rapidly, and there was no clear link established between the appellant and the robbery. The same doubts that...
Source-derived case information.
- Citation
- [2002] KEHC 573 (KLR)
- Parties
- Appellant: Antony Irungu Warui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 268 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Robbery With Violence, Identification Evidence, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antony Irungu Warui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellant for robbery with violence was safe based on the evidence presented.
- 2 Whether the identification of the appellant by the prosecution witness was reliable and sufficient to sustain a conviction.
Ratio Decidendi
The court found that the conviction of the appellant was unsafe because the identification evidence provided by the prosecution witness (pw2) was unreliable. The witness was under duress, the events occurred rapidly, and there was no clear link established between the appellant and the robbery. The same doubts that led to the acquittal of the co-accused should have been extended to the appellant. Consequently, the court held that the conviction could not stand and allowed the appeal.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction is quashed and the sentence set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL APPEAL NO 268 OF 2001
FROM ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE NO 2509 OF 1999 OF THE SP MAGISTRATE’S COURT AT KIBERA
ANTONY IRUNGU WARUI…………...……………………..APPELLANT
VERSUS
REPUBLIC………..………………………………………..RESPONDENT
J U D G M E N T
The appellant Anthony Irungu Warui was convicted of the offence of robbery with violence C/s 296(2) of the penal code and sentenced to death. He filed an appeal challenging the said conviction.
At the hearing of this appeal, the learned counsel for the republic conceded the appeal and with respect we agree. The appellant was charged jointly with six others with four counts of Robbery with violence C/s 296(2) and two counts of possessing of a firearm and ammunition respectively. All the other co-accused were acquitted of all the offences while the appellant was convicted of the Robbery counts 1,2 and three. He was acquitted of the firearm offences.
The main reason why the appellant was convicted was his alleged presence at the scene where the money stolen was recovered. This was in line with the evidence of pw2. This was contested by the appellant.
Pw2 was seated at the back of the motor vehicle when the said motor vehicle was taken away at gun point. He heard gun shots and saw many people. This motor vehicle was then driven away and stopped when some people opened the rear door of the vehicle.
While it was his evidence that some people talked to him directly, he only identified the appellant and on-other. This was in a house in South C, Nairobi whose link with the robbery was not established. Pw2 did not offer any particular reason why and how he picked the appellant.
As correctly observed by the learned trial magistrate, the events took place very fast and considering that firearms were used terror and fear reign. The same doubt that was extended to the appellants co-accused should have been given to him. We are of the view that, the conviction was unsafe.
Accordingly, this appeal is allowed, conviction quashed and sentence set aside. We order that, unless otherwise lawfully held, the appellant shall be release forthwith.
Orders accordingly.
Dated and delivered at Nairobi this 29th day of July, 2002
MBOGHOLI MSAGHA G. MBITO
JUDGE JUDGE