[2020] KEHC 2176 (KLR)
The conviction was unsafe because the identification of the appellant was not reliable. The incident occurred at night, the complainant did not know the assailant, and no identification parade was conducted after the appellant's arrest. Reliance solely on the appellant's clothing was insufficient, as there was no...
Source-derived case information.
- Citation
- [2020] KEHC 2176 (KLR)
- Parties
- Appellant: Emmanuel Igunza Mbasso; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 72 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- HK Chemitei
- 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
Emmanuel Igunza Mbasso
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the identification of the appellant was sufficient to sustain a conviction for robbery with violence.
- 2 Whether the prosecution proved ownership and theft of the alleged stolen items beyond reasonable doubt.
Ratio Decidendi
The conviction was unsafe because the identification of the appellant was not reliable. The incident occurred at night, the complainant did not know the assailant, and no identification parade was conducted after the appellant's arrest. Reliance solely on the appellant's clothing was insufficient, as there was no evidence that the complainant gave a description to the police prior to the arrest. Furthermore, the prosecution failed to prove that the items allegedly stolen belonged to the complainant or were in her custody at the time of the offence. The cumulative effect of these evidentiary deficiencies rendered the conviction unsustainable, warranting the appellant's acquittal.
Court Disposition
appeal_allowed
Orders
- The appeal succeeds.
- The appellant is set free unless lawfully held for another reason.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
CRIMINAL APPEAL NO.72 OF 2019
(Being an appeal from the decision of Hon. C.M. Kesse (Srm) dated 8th July 2019
in Criminal case No. 5525 of 2018)
EMMANUEL IGUNZA MBASSO............................................................................APPELLANT
VERSES
REPUBLIC................................................................................................................RESPONDENT
JUDGEMENT
1. The Appellant was charged with the offence ofRobbery with violence contrary to Section 296(2) of the Penal Code.The particulars of the offence were that on the4th day of December 2018 at Kiminini area within Trans-Nzoia County robbed Joyce Osilo Omuka of mobile phone, Itel, valued at Kshs. 3000, cash Kshs 250, National Identity Card and roast fish worth Kshs300 and at immediately before the time of robbery strangled the said Joyce Omuka.
2. The Appellant was convicted and sentenced to 20 years’ imprisonment hence this appeal. The learned state counsel has on his part conceded to the appeal as he submitted that the evidence presented did not support the conviction.
3. The evidence at the trial court was that the Complainant was walking home at around 8. 30 pm. As she arrived at their gate she met someone who greeted her and she responded. That person whom she had not seen pounced on her and strangled her till she lost consciousness. When she woke up she called for help and her family members opened the gate.
4. On 11th December 2018 about 7 days later she spotted the Appellant and together with her brother raised alarm and boda boda fellows assisted in arresting the appellant. At that time the Appellant wanted to be violent. She said that she identified the appellant from the clothes he wore.
5. The Appellant was thereafter arrested and taken to the police station and charged.
6. The Appellant denied the offence and in his un sworn evidence said that he was arrested without any cause as he travelled home.
7. The court has perused the proceedings including the presented exhibits. The court is inclined to allow the appeal for the same reasons advanced by the learned State Counsel.
8. The substantive issue is on identification. The Complainant conceded that the incident took place at night and the assailant was not known to her. To simply arrest the appellant seven days later and charging him without undertaking an identification parade was not prudent. How many people in Kiminini for instance wore the clothes like those worn by the Appellant?
9. The proper way was to have had the Appellant subjected to an identification parade after his arrest. To rely on his clothes alone was insufficient. In fact, there is no evidence that the Complainant made a report at the police station prior to the arrest and gave the police a proper description of the assailant.
10. The other ingredient is that the items which were stolen were not proved. No evidence was tendered to show that the items allegedly stolen including the phone belonged to PW1 or were in her custody.
11. The upshot is that the appeal succeeds, the Appellant is set free unless lawfully held.
Date, Signed and Delivered at Kitale this 29th day of October 2020.
_______________
H. K. CHEMITEI
JUDGE
29/10/2020