[2016] KEHC 5626 (KLR)
The conviction was quashed because there was no proper and positive identification of the appellant as the perpetrator of the robbery with violence. The attack occurred at night in unclear lighting conditions, and the complainant and his friend admitted the attacker was a stranger. No identification parade was...
Source-derived case information.
- Citation
- [2016] KEHC 5626 (KLR)
- Parties
- Appellant: Dickson Isiao Musalia (Alias Dicky Siao Musalia); Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 473 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- DW Mbuteti
- Legal Topics
- Robbery With Violence, Identification Evidence, Criminal Appeal, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Isiao Musalia (Alias Dicky Siao Musalia)
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly and positively identified as the perpetrator of the robbery with violence.
- 2 Whether the trial court critically evaluated the evidence and investigations presented before it.
- 3 Whether the conviction was safe in light of the evidence on record.
Ratio Decidendi
The conviction was quashed because there was no proper and positive identification of the appellant as the perpetrator of the robbery with violence. The attack occurred at night in unclear lighting conditions, and the complainant and his friend admitted the attacker was a stranger. No identification parade was conducted, and the arresting officers did not testify. The so-called investigation officer did not conduct meaningful investigations. In these circumstances, the conviction was unsafe and could not be sustained.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed in its entirety.
- The conviction is quashed and the sentence of death is set aside.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE HIGH COURT OF KENYA AT MURANG’A
CRIMINAL APPPEAL NO 473 OF 2013
(Appeal against Conviction and Sentence in Thika CM Criminal Case No 244 OF 2012 – S. Mbungi, Ag CM)
DICKSON ISIAO MUSALIA
(Alias DICKY SIAO MUSALIA)…………………………………APPELLANT
VERSUS
REPUBLIC…………………………………….…....…………..RESPONDENT
J U D G M E N T
1. The Appellant herein, Dickson Isiao Musalia, was charged with, tried for and convicted of robbery with violence contrary to section 296(2) of the Penal Code. It was alleged that on 14/01/2012 at Witeithie Stage in Thika Town within Kiambu County, he robbed John Muruani Kabuthi of one Samsung mobile phone make E 250 valued at KShs 5,000/00, and that at the time of the robbery he assaulted the said victim. He was sentenced to death as by law provided. He has appealed against both conviction and sentence.
2. The Appellant’s main grounds of appeal, as submitted by his learned Counsel, Mr. Magani, are that there was no proper and positive identification of the Appellant, and that the trial court did not critically evaluate the evidence placed before it, thereby failing to appreciate that there was no proper and full investigation of the alleged offence by the police.
3. Learned Prosecution Counsel, Mr. Njeru, did not support the conviction. He submitted that there was no proper identification by the complainant of the mobile phone allegedly stolen from him, and further, that the circumstances of the attack did not accord an opportunity for proper identification of the Appellant.
4. I have read through the rather brief record (for this type of case) of the trial court in order to evaluate the evidence and arrive at my own conclusions regarding the same. This is my duty as the first appellate court. I have borne in mind however, that I neither saw nor heard the witnesses testify, and I have given due allowance for that fact.
5. The attack took place at night, about 11. 00 p.m. It was sudden and fleeting, and took place in what appears to have been a back street. There was no proper evidence of the kind of light available, or how bright or how far it was from the place of the attack. The attacker himself ran off immediately after cutting the complainant on the head and snatching a mobile phone from him. The complainant (PW1) and his friend chased after him; he fell down but scrambled away leaving behind the panga and the phone. The complainant and his friend did not state that they struggled with the attacker in any other way.
6. The testimony of the complainant’s friend (PW2) that the attacker subsequently went back to the scene to collect the panga and the phone where he had dropped them while fleeing, and where he was allegedly arrested, was rather unlikely. He was not arrested with anything incriminating. At any rate, the officers who arrested the Appellant did not testify and there was not before the trial court evidence of the circumstances of his arrest. The so-called investigation officer (PW4) does not appear to have conducted any meaningful investigation of the alleged violent robbery. Upon the Applicant’s arrest he was taken to the complainant who was directed to “positively identify him”. No identification parade was conducted. The complainant and his friend had stated that the attacker was a stranger to them.
7. In all these circumstances, there was no proper and positive identification of the Appellant, and his conviction for such a grievous crime carrying the ultimate penalty is not safe at all. Learned Prosecution Counsel properly did not support the conviction.
8. I will allow this appeal in its entirety; I hereby quash the conviction and set aside the sentence of death imposed upon the Appellant. He shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED, SIGNED AT MURANG’A THIS 21ST DAY OF APRIL 2016
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 22ND DAY OF APRIL 2016