[2004] KEHC 246 (KLR)
The court found that the identification of the appellants was unreliable as the identification parade was conducted over two years after the robbery, and witnesses had not given descriptions of the robbers at the time of the initial report. Furthermore, there was no evidence that an identification parade was...
Source-derived case information.
- Citation
- [2004] KEHC 246 (KLR)
- Parties
- Appellant: John Musyimi Mutua alias Macho; Appellant: Wambua Mutie; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 332 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Robbery With Violence, Identification Evidence, Criminal Appeals, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Musyimi Mutua alias Macho
Appellant
Wambua Mutie
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the identification of the appellants was proper and reliable.
- 2 Whether the conviction for robbery with violence was safe based on the evidence presented.
- 3 Whether the second appellant could have participated in the alleged robbery.
Ratio Decidendi
The court found that the identification of the appellants was unreliable as the identification parade was conducted over two years after the robbery, and witnesses had not given descriptions of the robbers at the time of the initial report. Furthermore, there was no evidence that an identification parade was conducted for the second appellant, and it was established that he was in prison at the time of the alleged offence. The contradictions in the witnesses' testimonies and the lack of proper identification procedures rendered the convictions unsafe. Consequently, the court allowed the appeals, quashed the convictions, and set aside the sentences.
Court Disposition
appeal_allowed
Orders
- The appeals are allowed.
- The convictions are quashed and the sentences set aside.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Criminal Appeal 332 of 2003
(From Original Conviction and Sentence in Criminal Case No. 2104 of 2002 of the Senior Resident Magistrate’s Court at Kwale L.N. Mbatia, SRM)
JOHN MUSYIMI MUTUA Alis MACHO
WAMBUA MUTIE …………………….......…………………………….. APPELLANTS
- Versus -
REPUBLIC ……………………….………….....…………………..…… RESPONDENT
J U D G M E N T
JOHN MUSYIMI MUTUA alias MACHO and WAMBUA MUTIE were with another tried and convicted of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death. They have appealed against both the conviction and sentence.
The learned Assistant Deputy Public Prosecutor did not support the conviction on the grounds that the identification of the Appellants after a period of over two years was not proper. She also submitted that two witnesses P.W.1 and P.W.2 alleged that they identified both the Appellants when there is no evidence to show that any parade was conducted for the second Appellant. The two witnesses also contradicted themselves and their evidence cannot therefore be relied upon.
We have ourselves examined the lower court record and agree with the Assistant Deputy Public Prosecutor that the Appellants’ convictions are not safe and cannot therefore be allowed to stand. Apart from the fact that the identification parade was held over two years after the robbery, the witnesses had not given the description of the robbers to the police at the time of making the report immediately after the robbery.
The witnesses also alleged that they identified both the Appellants when there was no evidence to show that identification parades were conducted for both Appellants. P.W.4 testified that he conducted a parade for the first Appellant only. What is more is that the second Appellant, Wambua Mutie was in prison at Shimo La Tewa on the date of the alleged robbery and cannot therefore have participated in the robbery of P.W.1.
For these reasons the convictions of the Appellants cannot be allowed to stand. We therefore allow their appeals, quash the conviction and set aside the sentence. The Appellants shall be released forthwith unless otherwise lawfully held.
DATED and delivered this 14th day of December 2004.
J. KHAMINWA
JUDGE
D.K. MARAGA
AG. JUDGE