[1993] KECA 72 (KLR)
The Court of Appeal found that the identification parade was conducted in a manner that prejudiced the appellant, as there was credible evidence that he was handcuffed and that the parade members were conspicuously dissimilar to him. This rendered the identification evidence unreliable. Furthermore, the courts below...
Source-derived case information.
- Citation
- [1993] KECA 72 (KLR)
- Parties
- Appellant: Jatani; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 68 of 1993
- Procedural Posture
- Criminal Appeal / Second Appeal From Conviction and Sentence
- Outcome
- appeal allowed; conviction quashed; sentences set aside; appellant to be released unless otherwise lawfully held
- Legal Topics
- Identification Parade, Evidence of Identification, Procedural Fairness, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jatani
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From Conviction and Sentence
Legal Issues
- 1 Whether the identification parade was conducted in a manner that prejudiced the appellant.
- 2 Whether the identification evidence was reliable and sufficient to sustain a conviction.
- 3 Whether the failure to properly address the appellant's complaint regarding the identification parade rendered the conviction unsafe.
Ratio Decidendi
The Court of Appeal found that the identification parade was conducted in a manner that prejudiced the appellant, as there was credible evidence that he was handcuffed and that the parade members were conspicuously dissimilar to him. This rendered the identification evidence unreliable. Furthermore, the courts below failed to adequately address the appellant's complaint regarding the conduct of the parade. The probative value of the identification was therefore nil, and the conviction could not be sustained. The appeal was allowed, the conviction quashed, and the sentences set aside.
Court Disposition
appeal allowed; conviction quashed; sentences set aside; appellant to be released unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction on each of the three counts is quashed.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE COURT OF APPEAL
AT NAKURU
(Coram: Gicheru, Muli & Omolo JJ A)
CRIMINAL APPEAL NO 68 OF 1993
JATANI……………….… APPELLANT
VERSUS
REPUBLIC……………RESPONDENT
(Appeal from a conviction and sentence of the High Court of Kenya
at Nakuru (Lady Justice R Nambuye) dated 26th November, 1992
in HC CR A No 387 of 1992)
JUDGMENT
The entire case for the prosecution against the appellant hinged upon his identification by the complainants, Alphonse Matingi Kabera (PW3) and Laban Samuel Kariuki (PW7); and one Owino Godio (PW8). PW7 died before his cross – examination by the appellant was completed. Although the three counts of robbery with which the appellant was charged were alleged to have been committed in the light of day on 4th January, 1988 at about 11. 45 am and PW3, PW7 and PW8 claimed to have identified him as the perpetrator of the offences in these three counts, his complaint before us in this second appeal is that the identification parade organized by the police at Parklands Police Station on 2nd March, 1988 was conducted in a manner that the identifying witnesses would easily pick on him. This was because when he appeared at that parade, he was handcuffed and most of the members of the parade were Asians. This distinctly isolated him as the only odd man in the said parade and was therefore prejudicial to him. It cast doubt on the identification evidence against him. Hence, the case against him was not proved beyond reasonable doubt.
As we have indicated above, PW7 died before he was cross-examined on his identification of the appellant. His evidence – in – chief having thus not been tested, cannot fairly be taken against the appellant. Although PW3 in his evidence said that nobody at the identification parade was in handcuffs and the police officer conducting the parade No 213649 IP Cleophas Wekesa (PW9) – also said so besides denying that during the parade the appellant was in handcuffs, PW8 when cross – examined by the appellant, admitted that one member of the parade was in handcuffs but that that person was not the appellant. He also admitted seeing Asian(s) at the parade. According to the appellant, that one member of the parade who was in handcuffs was himself.
The appellant’s complaint that he appeared at the identification parade while handcuffed was a live issue both at his trial and on his first appeal. Neither of the two courts below dealt with it satisfactorily. Indeed, the said courts glossed over this issue, the trial court simply saying that it was satisfied that PW9 had conducted the identification parade in accordance with the force standing orders while the first appellate court erroneously observed that Samson Thomas (PW6) could have identified the appellant if the latter was in handcuffs at the identification parade. Of course PW6 was not one of the identifying witnesses at the parade. In view of the evidence of PW8 in this regard and the possibility of the members of the parade being conspicuously dissimilar to the appellant, the probative value of the appellant’s identification at this parade was nil. This had the effect of rendering suspect the entire identification evidence against the appellant. It is for this reason, we think, that the appellant’s plea before us is not without merit. In the circumstances therefore, we allow his appeal, quash his conviction one each of the three counts preferred against him and set aside the sentences in respect thereof. He will be set at liberty forthwith unless otherwise lawfully held in custody.
Dated and Delivered at Nakuru this 1st day of October, 1993
J.E. GICHERU
………………………….
JUDGE OF APPEAL
M.G. MULI
………………………….
JUDGE OF APPEAL
R.S.C OMOLO
………………………….
JUDGE OF APPEAL