[2013] KEHC 129 (KLR)
The court found that the identification parade was conducted in accordance with the applicable rules and that the complainant's prior knowledge of the appellant did not render the parade invalid. The court also determined that there were no material contradictions in the prosecution's evidence that would undermine...
Source-derived case information.
- Citation
- [2013] KEHC 129 (KLR)
- Parties
- Appellant: Ineya Muswanga alias Bodo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 12 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; conviction and sentence confirmed
- Legal Topics
- Robbery With Violence, Identification Parade, Evidence Contradictions, Criminal Appeal, Sentencing, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ineya Muswanga alias Bodo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the identification parade was conducted properly.
- 2 Whether there were contradictions in the prosecution evidence.
Ratio Decidendi
The court found that the identification parade was conducted in accordance with the applicable rules and that the complainant's prior knowledge of the appellant did not render the parade invalid. The court also determined that there were no material contradictions in the prosecution's evidence that would undermine the conviction. Consequently, the court held that the conviction and sentence imposed by the trial court were proper and should be upheld. The appeal was dismissed in its entirety.
Court Disposition
appeal dismissed; conviction and sentence confirmed
Orders
- The appeal is dismissed.
- The conviction and sentence of the appellant are confirmed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
HCCRA NO. 12 OF 2013
INEYA MUSWANGA alias BODO ….......................... APPEALLANT
VERSUS
REPUBLIC …....................………………........………RESPONDENT
(From the original conviction and sentence of G. A. Mmasi Ag. SPM, at Vihiga Court, Criminal Case No. 487 of 2012)
JUDGEMENT
The appellant herein Ineya Muswanga alias Bodo was charged before the lower court with the offence of robbery contrary to Section 295 as read with Section 296(2) of the Penal Code. Particulars of the offence are that, on the 18th day of May 2012 at Bendera market in Vihiga County of Western Province, jointly with others not before court while armed with dangerous weapons namely; iron bars and knives robbed Dalton Asava Munganyi of motor cycle Registration No. KMCM 056Y, make Kingbird, frame number LRYBCJLB8A0800091, Engine Number 156VM18100091 valued at Ksh 73,600/= the property of Jane Mbone, a mobile phone make Nokia 101 valued at Ksh 3,000/= and cash Ksh 2,500/= the property of Dalton Asava Munganyi and at immediately before the time of such robbery, wounded the said Dalton Asava Munganyi.
The appellant was jointly charged with another who was convicted and sentenced for the offence of handling stolen property.
The prosecution case was that, the complainant was hired by the appellant to take appellant to Chavakali. The complainant is a boda boda rider. It was about 7 pm but not dark and so the complainant was able to see the appellant well. They set off to Chavakali and on reaching there, the appellant asked complainant to take him to Bendera market. On reaching there, the appellant alighted and hit the complainant with a metal bar injuring him. The complainant lost consciousness and came to his senses 1½ days later when he was in hospital. In the meantime, the motor bicycle that was robbed from complainant was recovered from the appellant's who had intended to sell it to the policemen who pretended to be buyers. The appellant was arrested and was later identified on an identification parade by the complainant. His P3 form was produced in court as exhibit. PW5 is the one who conducted an identification parade on the appellant and he produced the parade form as exhibit.
Put on his defence, the appellant denied the offence and said he was arrested while at his home and was surprised to be charged with this offence of robbery.
At the end of the hearing, the trial court found the appellant guilty of this charge of robbery on the grounds that the appellant was positively identified by the complainant and that the appellant was carrying a metal bar wrapped in a green paper bag which metal bar was recovered from the house of the appellant.
The appellant now appeals before this court on his conviction and sentence on the grounds that the identification parade conducted did not comply with police standing orders as the complainant was known to the appellant. He also appealed on the ground that the prosecution evidence was contradictory.
The issues for determination then based on these grounds are:-
Whether the identification parade was conducted properly.
Whether there were contradictions in prosecution evidence.
On 1st issue, the PW1 told court he had seen the appellant before in the area but in the evidence he never mentioned the robber as one Ineya. It was only in cross examination that PW2 mentioned that the robber was one Ineya and this was never recorded in her statement. The assertion therefore that the parade was a sham on this ground is not true. There is also the issue of the position of the appellant on the parade which does not appear in the proceedings as stated by the appellant. In the circumstances, we find that the parade was correctly done without flouting any rule and is therefore authentic.
On the issue of contradictions, there were no material contradictions in prosecution's evidence which would warrant overturning the prosecution's case. We therefore find that the conviction and sentence of the appellant was proper and we confirm it and dismiss this appeal accordingly.
DATED THIS 11TH DAY OF DECEMBER 2013
SAID J. CHITEMBWE HELLEN S. WASILWA
JUDGE JUDGE