[2009] KEHC 483 (KLR)
The court found that the identification of the appellant was doubtful due to the lack of evidence regarding the intensity and proximity of the lighting at the scene, the absence of a description of the appellant by the complainant at the time of reporting, and the brief duration of the incident. Additionally, the...
Source-derived case information.
- Citation
- [2009] KEHC 483 (KLR)
- Parties
- Appellant: Josiah Kamanga Ndare; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 276 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be set free unless otherwise lawfully held
- Legal Topics
- Robbery With Violence, Identification Evidence, Language of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josiah Kamanga Ndare
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was positively identified as one of the robbers during the incident.
- 2 Whether the failure to indicate the language of the proceedings violated the appellant's right to a fair trial.
Ratio Decidendi
The court found that the identification of the appellant was doubtful due to the lack of evidence regarding the intensity and proximity of the lighting at the scene, the absence of a description of the appellant by the complainant at the time of reporting, and the brief duration of the incident. Additionally, the court held that the failure to indicate the language in which the proceedings were conducted was a grave omission, as it could not be ascertained whether the appellant understood the proceedings. These factors combined to undermine the safety of the conviction, leading the court to quash the conviction and set aside the sentence.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be set free unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAKURU
Criminal Appeal 276 of 2006
(From original conviction and sentence in Criminal Case No.3492 of 2004 of the Principal Magistrte’s court at Nyahururu – T. M. MWANGI, SRM)
JOSIAH KAMANGA NDARE……APPLICANT
VERSUS
REPUBLIC………………………RESPONDENT
JUDGMENT
JOSIAH KAMANGA NDARE, the appellant, was charged with robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the charge against him were that on 14th August 2004 at Nyahururu Township in Laikipia District within Rift Valley Province jointly with others not before court and while armed with dangerous weapons namely a pistol they robbed Samuel Thiongo Mwangi of cash Kshs.9,300/- and at or immediately before or immediately after the time of such robbery they applied actual violence on the said Samuel Thiongo Mwangi. He pleaded not guilty but upon hearing before the Senior Resident Magistrate at Nyahururu he was convicted and sentenced to death. He has appealed to this court against both that conviction and sentence.
In his written submissions, the appellant raised two main points. First, he contended that the circumstances at the scene were not favourable for a positive identification because the intensity of the light was not stated. Secondly, he argued that he did not follow the proceedings as the trial was conducted in English and it was not translated into his mother tongue.
On his part Mr. Gumo, the Assistant Deputy Public Prosecutor, dismissed the appellant’s contention by contending that this was a case of recognition as opposed to mere identification. He said the scene was well lit with electrical light from two surrounding petrol stations. In the circumstances he urged us to dismiss this appeal in its entirety.
We have carefully read the lower court record. The intensity of the light from the two petrol stations was not stated. Besides that it is not clear how far the robbers were from the petrol station for the witnesses to have been able to see them. When the complainant reported the robbery he did not give any description of the appellant to the police or say that he could be able to identify him. We also find it difficult to understand why the complainant and PW2 did not rush into the petrol station and scream for help. Taking all these into account and the fact that the robbery incident hardly took five minutes we are in doubt as to the appellant’s identification.
It is settled trite law that in criminal proceedings every accused person is entitled to the interpretation of the proceedings into a language he or she understands and that has to be shown on the record. In this case we note from the record that the language in which the proceedings were conducted is not stated. That was a grave omission and as an appellate court we cannot be sure that the appellant understood the proceedings against him.
For these reasons we find that the appellant’s conviction cannot be allowed to stand. Consequently we allow this appeal, quash the conviction and set aside the sentence. The appellant shall be set free forthwith unless otherwise lawfully held.
DATED and delivered this 26th day of November, 2009.
D. K. MARAGA
JUDGE.
M. G. MUGO
JUDGE.