[2003] KEHC 1016 (KLR)
The court found that the only evidence implicating the appellant was a retracted statement by a co-accused, which is of the weakest evidentiary value and cannot be used against a co-accused without corroboration. No other prosecution witness provided evidence linking the appellant to the crime. The trial magistrate...
Source-derived case information.
- Citation
- [2003] KEHC 1016 (KLR)
- Parties
- Appellant: Joseph Kabiru Wachira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyandarua
- Jurisdiction
- Kenya
- Case Number
- ? 84 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Robbery With Violence, Evidence Evaluation, Corroboration Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kabiru Wachira
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellant was supported by sufficient admissible evidence.
- 2 Whether retracted statements of co-accused can be used as evidence against the appellant without corroboration.
Ratio Decidendi
The court found that the only evidence implicating the appellant was a retracted statement by a co-accused, which is of the weakest evidentiary value and cannot be used against a co-accused without corroboration. No other prosecution witness provided evidence linking the appellant to the crime. The trial magistrate erred in finding corroboration where none existed and failed to warn himself of the dangers of convicting on uncorroborated retracted statements. As a result, the conviction was unsafe and could not stand.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction of the appellant is quashed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU CRIMINAL APPEAL NO. 84 OF 2001 (ORG PM’s KRGY CR. C. 869/00)
JOSEPH KABIRU WACHIRA …………………………………….. APPELLANT
VERSUS
REPUBLIC ……………………………………………………………… RESPONDENT
JUDGMENT
The Appellant, jointly with other four, were charged with robbery with violence contrary to section 296 (2) of the Penal Code particulars alleging that on the night of 8th and 9th February 2000 at Kerugoya town in Kirinyaga District, they with others not before court while armed with dangerous weapons namely pangas, axes, simis and crow bars robbed Tairus Mbogo Kuria of various assorted shop goods in the process of which they wounded the said Tairus Mbogo Kuria.
During the hearing of the case, PW 1 Tirus Mbogo Kuria, the watchman and key witness told the court that he knew the Appellant who was named by his co-accused persons. Otherwise PW 1 did not know how the Appellant was involved.
No other prosecution witness said anything about the Appellant except PW 3 P.C. Kizito Masimbwa who was merely stating what he claimed accused one had told him. That was no evidence against the Appellant.
What the learned trial magistrate relied upon was therefore mention of the Appellant in retracted statement under inquiry and retracted charge and cautionary statement of co-accused Paul Kariuki Gichobi. In the first place the statements having been retracted it became evidence of the weakest degree. Secondly that evidence was only evidence against the maker of the statements and not against the co-Accused persons the statement implicate. Thirdly assuming that it could be good evidence against the Appellant, the evidence definitely needed corroboration in relation to the Appellant. There was completely no such corroborative evidence and the learned trial magistrate clearly misdirected himself when he said there was corroboration and therefore failed to warn himself against the danger of convicting upon uncorroborated charge and cautionary statement or statement under inquiry.
From what we are saying, the learned State Counsel Mr. Obuo properly conceded the Appellant’s appeal.
We accordingly, allow the appeal, quash the Appellant’s conviction and set aside the sentence imposed upon him. The Appellant be released forthwith unless lawfully detained in some other cause.
Dated this 19th day of November 2003.
J.M. KHAMONI
JUDGE
H.M. OKWENGU
JUDGE