[2011] KEHC 2502 (KLR)
The court found that the conviction of the appellants was unsafe as it was based solely on the complainant's evidence, which was not corroborated and was made under stressful conditions with insufficient lighting. The identification parade, conducted three years after the incident, could not reliably support the...
Source-derived case information.
- Citation
- [2011] KEHC 2502 (KLR)
- Parties
- Appellant: Chaparakach Timothy Kitai; Appellant: Jack Cherotwe Kipsang (Alias Amosi); Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 111 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Robbery With Violence, Identification Evidence, Appeals Against Conviction, Standard of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chaparakach Timothy Kitai
Appellant
Jack Cherotwe Kipsang (Alias Amosi)
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the identification evidence was sufficient to sustain a conviction for robbery with violence.
- 2 Whether the conviction based on the sole testimony of the complainant was safe.
- 3 Whether the delay in conducting the identification parade affected the reliability of the evidence.
Ratio Decidendi
The court found that the conviction of the appellants was unsafe as it was based solely on the complainant's evidence, which was not corroborated and was made under stressful conditions with insufficient lighting. The identification parade, conducted three years after the incident, could not reliably support the complainant's identification. The appellate court held that it would be dangerous to uphold the conviction in such circumstances, and therefore allowed the appeal, quashed the conviction, and set aside the sentence of death.
Court Disposition
appeal_allowed
Orders
- The conviction of robbery with violence is quashed.
- The sentence of death is set aside.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. 111 OF 2009
CHAPARAKACH TIMOTHY KITAI................................................................................APPELLANT
VERSUS
REPUBLIC...................................................................................................................RESPONDENT
AND
CRIMINAL APPEAL NO.112 OF 2009
JACK CHEROTWE KIPSANG (Alias) AMOSI............................................................APPELLANT
(from the conviction and sentence of M.Wambani, SRM in Bungoma CMC CRIMINAL Case No.221 of 2009)
J U D G M E N T
The two above appeals were consolidated for the purpose of a joint hearing on 8. 12. 2010.
The two appellants were originally jointly charged with Robbery with Violence contrary to Section 296 (2) of the Penal Code. They were both convicted and sentenced to death. They both separately appealed against both the conviction and sentence.
The facts behind the conviction are as follows, in a summary form:-
The complainant, Silas Ndiema, was asleep in his shop at Cheorerora Trading Centre on 13. 1.2006. His wife was also sleeping there. Their two children and a sister in-law also slept in another room in the same house. About midnight the family was attacked by thieves who broke down the main door the house through the door. Unfortunately the shots thereby killed the complainant’s sister who was sleeping with the complainant’s children.
Eventually, according to complainant’s evidence, the thieves carried the complainant outside of the house where they tied his hands at his back with ropes. Before they escaped, the robbers stole the complainant’s Kshs.200,000/- some of which was kept in his pocket and the other, in a drawer. The complainant who at the lower court, testified as PW1, stated that there was a bright moon light which he used to identify Chaparakach Timothy Kitai, the 1st appellant and Jack Cherotwe Kipsang, Alias Amos, the 2nd appellant. He also claimed that he saw their faces and the apparel they wore while inside the house using the light from a torch which the appellants or one of them flashed as they searched for money in the house.
At the hearing of the appeals the State Counsel, M/s Letting declined to support the conviction. She stated that the conviction was based upon the testimony of only the complainant. She stated further that the evidence of identification of the appellants by the complainant, PW1, was weak and unreliable, especially since the police identification parade result which could have corroborated the said evidence, was also based on a parade that took place three years after the robbery took place. That is why M/s Letting accordingly conceded the two appeals.
We have on our part as an appellate court, considered the evidence on the record with care. We are satisfied that the evidence from the complainant upon which the conviction was based, was not adequate, apart from coming from a sole source. We hold that there was no sufficient light upon which the complainant who was acting under stressful conditions, could have satisfactorily seen and identified the attackers, particularly, the two appellants.
We accordingly agree that it is dangerous to leave the conviction standing. We would allow the appeal.
The conviction of robbery with violence, is accordingly quashed and the sentence of death set aside. The two appellants herein are hereby ordered set free from prison, unless therein otherwise lawfully held.
Orders accordingly.
Dated and delivered at Bungoma this 31st day of May 2011.
D.A. ONYANCHAF.MUCHEMI
JUDGEJUDGE
Judgment delivered in the presence of Mr Ogoti State Counsel and the appellants on 31st day of May 2011.
D.A. ONYANCHAF.MUCHEMI
JUDGEJUDGE