[1991] KECA 18 (KLR)
The Court of Appeal found that the conviction for attempted robbery was unsafe due to the absence of an identification parade and the improper opportunity given to the complainant to see the appellant at the police station, which compromised the reliability of the identification evidence. The court emphasized that...
Source-derived case information.
- Citation
- [1991] KECA 18 (KLR)
- Parties
- Appellant: Joseph Kimanthi M'Mniridua; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 120 of 1990
- Procedural Posture
- Criminal Appeal / Second Appeal From High Court Judgment
- Outcome
- Appeal allowed in part; conviction and sentence on count one quashed; appeal on count two dismissed.
- Legal Topics
- Identification Evidence, Attempted Robbery, Personation, Criminal Procedure, Appeals, Evidence Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kimanthi M'Mniridua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From High Court Judgment
Legal Issues
- 1 Whether the appellant was properly identified as one of the robbers during the attempted robbery.
- 2 Whether the conviction for attempted robbery was safe in the absence of an identification parade.
- 3 Whether the conviction for personation was supported by the evidence.
Ratio Decidendi
The Court of Appeal found that the conviction for attempted robbery was unsafe due to the absence of an identification parade and the improper opportunity given to the complainant to see the appellant at the police station, which compromised the reliability of the identification evidence. The court emphasized that identification evidence must be handled with great care, and procedural safeguards such as identification parades are essential to prevent miscarriages of justice. The court also noted that the footprints at the scene were not those picked up by the police dog, further weakening the prosecution's case on count one. Consequently, the conviction and sentence for attempted robbery...
Court Disposition
Appeal allowed in part; conviction and sentence on count one quashed; appeal on count two dismissed.
Orders
- Conviction and sentence on count one (attempted robbery) quashed and set aside.
- Appellant to be set free forthwith on count one unless otherwise lawfully held.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAKURU (Coram: Nyarangi, Cockar JJ.A & Omolo Ag. J.A.) CRIMINAL APPEAL NO. 120 OF 1990 BETWEEN
JOSEPH KIMANTHI M'MNIRIDUA..............................APPELLANT
AND
REPUBLIC...............................................RESPOND ENT
(Appeal from a judgment of the High Court of Kenya at
Nakuru (Tanui, J.) dated 29th March, 1990
in Criminal appeal No. 305 of 1989)
**********************
JUDGMENT OF THE COURT
The appellant was convicted of attempted robbery contrary to section 297(1) of the Penal Code and of personating contrary to section 382(1) of the Penal Code and was sentenced to 5 years' imprisonment and to receive 5 strokes on count 1 and to 4 months' imprisonment on count 2.
His appeal to the High Court was dismissed. The only point of law for consideration in this second appeal is that of identification. The complainant who had fought off the robbers, who were about 5 in number, said that he was able to see and identify the appellant as one of the robbers by the corridor light which was on at the time. The struggle had lasted for about 5 minutes and in our view the complainant had ample time to see the appellant. There were favourable factors of light, time and opportunity for the complainant to be able to see the appellant clearly. About 2 hours later at about 3. 30 a.m. at night the appellant was seen walking at a lonely spot. On seeing the policemen he ran away but was caught soon after hiding behind a thicket. When arrested he gave his name as John Mwangi Wambugu which later was found not to be his true name.
Both the trial Court and the High Court had rejected the defence raised by the appellant that he was arrested at 8. 00 p.m. We are in full agreement with the concurrent rejection of the defence raised by the appellant.
The learned State Counsel does not support the conviction. We observe that there was no identification parade held in this case. Instead the complainant was allowed an opportunity to see the appellant at the police station. This we strongly deplore and hope that a greater care will be exercised to ensure that witnesses do not see the suspects at the Police Stations. Besides the footprints at the scene were not the ones picked up by the police, dog. For these reasons we take the view that the conviction on count one is not safe. We allow the appeal on count one, quash the conviction, set aside the sentence on count 1 and order that so far as the charge relating to count one is concerned the appellant shall be set free forthwith unless otherwise lawfully held.
As far as conviction on count 2 is concerned we are satisfied that the same is sound and we dismiss the appeal against conviction on count 2.
Dated and delivered at Nakuru this 25th day of February, 1991.
J.O. NYARANGI
..............
JUDGE OF APPEAL
A.M. COCKAR
...............
JUDGE OF APPEAL
..............
JUDGE OF APPEAL
R.S.C. OMOLO
..............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR