https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8888

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARSEN** **CRIMINAL APPEAL NO. E026 OF 2025** **ELISHA MUSEMBI KAMAU…..….………………………APPELLANT** **VERSUS** **REPUBLIC……………………………….………..……….RESPONDENT** *(Being an appeal from the original conviction and sentence by Hon. I.G.Ruhu, Eenior Resident Magistrate, in Mpeketoni Senior Resident Magistrate’s Court Criminal Case No. E126 of 2024 delivered on 17/11/2024)* **JUDGMENT** 1. The Appellant was convicted of the offence of attempted murder contrary to Section 220(a) of the Penal Code. The particulars of the offence were that on the 30th day of May 2024 at Juhudi village Kibaoni location in Lamu West sub county within Lamu County he unlawfully attempted to cause the death of Michael Ngure (herein referred to as the complainant) by strangulation. 2. The appellant was sentenced to serve 10 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. 3. The grounds of appeal are in summary that; 1. The learned trial magistrate erred in both law and facts by shifting the burden of proof from the prosecution to the appellant. 2. The learned trial magistrate erred in law in failing to find that the evidence adduced by prosecution was full of contradictions. 3. The learned magistrate erred in law in convicting the appellant on poor investigations conducted by the prosecution. 4. The learned magistrate erred in law in sentencing the Appellant to a harsh and excessive sentence of 10 years imprisonment. 5. The learned magistrate erred in law in convicting the Appellant without considering his reasonable defense. 6. The learned magistrate erred in law in sentencing the Appellant without considering the period spent in remand prison. **Prosecution case** 4. The case for the prosecution is that the complainant, who was PW2 in the case was at the material time a school going child aged 7 years. He was living with her parents at Juhudi village. 5. It was the evidence of the complainant that on the material day at about 7am he was on his way to school when he met a man unknown to him. The man held him and dragged him to the bush. He blocked his mouth and started to strangle him by the neck. He left him foaming from his mouth. 6. Meanwhile, the mother to the complainant PW1 received a report from her daughter that she was unable to see the complainant on their way to school. The complainant`s mother went out in search of the complainant and met with him on the way. He was foaming from his mouth. He told his mother that he had been strangled by a person wearing a red shirt. Neighbours, Gedion Gitau PW3 and Francis PW4 went to the place. They started to look for a man in a red shirt. They informed boda boda riders at Kibaoni who arrested a suspect, the Appellant. He was taken to Kibaoni police station. The complainant identified him even though he had changed clothes. 7. The complainant was taken to Mpeketoni sub county hospital. He was examined by a clinical officer PW6 who found him with strangulation marks on the front side of the neck. His eyes were reddish. The clinical officer completed his P3 form. 8. The case was investigated by PC Selina PW5 of Kibaoni police station and charged the Appellant with the offence of attempted murder. During the hearing of the case in court the clinical officer PW5 produced the treatment notes and the P3 form as exhibits, P.Exh.1 and 2 respectively. **Defence Case** 9. When placed to his defence the Appellant said that on the material day he left home to look for work. He was arrested by boda boda operators who accused him of strangling a child. He was taken to the police station. He was interrogated. The boy was taken to the police station. He told the police that he did not know him. The boy said that his attacker was wearing red clothes. 10. The Appellant called his mother, DW2, as his witness in the case. It was her evidence that the Appellant on that day left home at 9am after they had had breakfast. She later received a report that he had been arrested. She went to Kibaoni police station and he narrated to her how he was arrested. 11. The appeal was disposed of by way of written submissions. **Submissions** 12. The Appellant submitted that he was arrested and charged on mistaken identity in that he was not identified as the person who committed the offence. That no identification parade was conducted against him. 13. The Appellant submitted that the trial curt disregarded his alibi defence. 14. It was submitted that the trial court had the discretion to impose a lesser sentence but the court ignored his mitigation and sentenced the Appellant to a harsh sentence of 10 years imprisonment. 15. The Respondent on the other hand submitted that the charge of attempted murder was not proved beyond reasonable doubt. Reference was made to the case of **Moses Kabue Karuoya -v-Republic (2016) KEHC 2729 (KLR)** where Mativo J (as he was) expressed himself as follows on the subject: **Thus, for there to be an attempt to commit an offence by a person, that person must:-** 1. **Intend to commit the offence;** 2. **Begin to put his intention to commit the offence into execution by means which are adapted to its fulfilment. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve;** **(c) Do some overt act which manifests his intention; that is, the accused performs an act which is capable of being observed by another (although it may not have been) and which in itself makes clear his intention to commit the offence.** The Respondent urged the court to dismiss the appeal. **Analysis and determination** 16. This being a first appeal, this court is mandated to analyze and re-evaluate afresh the evidence adduced before the trial court in line with the holding in the case of **Odhiambo v Republic Cr. App No. 280 of 2004 (2005) 1 KLR** where the Court of Appeal held that: “**On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour”.** 17. The appellant was convicted on a charge of attempted murder contrary to section 220 of the Penal Code. “Attempt” is defined in section 388 of the Penal Code as follows: **388. Attempt defined** **(1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.** **(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.** **(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.** 18. The ingredient of the offence of attempted murder is the intention to kill and the overt act done towards the fulfilment of that intention. In the case of **Cheruiyot v Republic (1976-1985) EA 47** it was held thus: **In order to constitute an offence under section 220, it must be shown that the accused had a positive intention to unlawfully cause death.** 19. I have considered the grounds of appeal, the record of the trial court and the submissions tendered by the parties herein. The issue for determination is whether the case against the appellant was proved beyond all reasonable doubt and more so whether the trial magistrate was correct in his finding that the appellant was positively identified to have been the person who attempted to kill the complainant. 20. It is trite that the court before basing a conviction on evidence of identification should examine the evidence carefully and satisfy itself that the circumstances of identification were favourable and free from the possibility of error. This position was re-stated by the Court of Appeal in the case of [**Kariuki Njiru and 7 others v. Republic**](http://kenyalaw.org/caselaw/cases/view/6978)**CR. Appeal No. 6 of 2001** that; **The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.** 1. The same was stated in **Wamunga v Republic**[1989] KLR 424 where the Court of Appeal stated thus: **It is trite law that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.** 1. The trial court in convicting the appellant of the offence stated that it accepted the evidence that the Appellant was a stranger to the complainant. The court was of the opinion that an identification parade was necessary. Despite that the court held that the Appellant had identified the appellant at the police station as the person who had strangled him earlier in the day. That even though the Appellant had changed his clothes the complainant was able to recall his face and his unique marks on the face. That the investigating officer corroborated the evidence on how the appellant was identified. That she said in cross-examination that she conducted an identification parade. That the Appellant in his defence did not give an account of his whereabouts at the material time. The court consequently dismissed the Appellant’s defence. 23. It was the duty of the prosecution to prove the charge against the appellant beyond reasonable doubt and not for the Appellant to give account of his whereabouts on that day. 24. The complainant never knew the Appellant before that date. It was his evidence that the assailant was wearing a red shirt and a trouser that had pockets. That he found him at the police station and identified him, though he had at that time changed his shirt. He said that he had marks on the face. 25. The only identification the complainant gave to his mother and the other prosecution witnesses is that his assailant was wearing a red shirt. He did not describe to any of them his physical appearance and never mentioned to any of them that he had any marks on his face. He did not tell the court what sort of marks they were. The trial court made a finding that the complainant identified the Appellant by his face when he did not describe his facial appearance to the prosecution witnesses nor did he say what kind of marks he had on his face. 26. When the complainant found the Appellant at the police station he was not in any red shirt and he therefore did not identify him by his red shirt. The investigating officer did not conduct an identification parade on the appellant. The purpose of a police identification parade is to test whether a witness is able to identify an accused person where the witness did not know the accused before the incident. Without such an identification having been conducted, the complainant was only attempting to identify the Appellant from the dock. It is trite law that dock identification is evidence of very weak kind and the same cannot be the basis of a conviction unless there is some other independent evidence to support it, see **Gabriel Kamau Njoroge v. Republic [1982-88] IKAR 1134.** There was no credible evidence that the complainant identified the Appellant as the perpetrator. 27. The complainant was the sole identifying witness in the case. It is trite law that a court before convicting on the evidence of a single identifying witness, as in this case, should warn itself of the danger of basing a conviction on such evidence. In **Roria vs Republic (1967) EA 583** the Court of Appeal stated at page 584 that: **“A conviction resting entirely on identity invariably causes a degree of uneasiness…That danger is, of course, greater when the only evidence against an accused person is identification by one witness and though no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safe to act on such identification.”** 28. In **Kiilu & Another v Republic [2005] eKLR,** the Court of Appeal held that; **“Subject to well-known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness in respect of identification especially when it is known that the conditions favoring a correct identification were difficult. In such circumstances, whether it be circumstantial or direct, pointing to guilt, from where a judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness can be safely accepted as free from possibility of error.”** 1. The trial court in this case did not warn itself of the danger of convicting on the evidence of a single identifying witness. The court erred in that respect. 2. The complainant in this case was a child aged 7 years. He gave unsworn evidence. The position of unsworn evidence in a case was stated by the Court of Appeal in the case of **May v Republic (1981) KLR** to be as follows: **That unsworn statement is not, strictly speaking evidence and the rules of evidence, cannot be applied to unsworn statement. It has no probative value, but it should be considered in relation to the whole of the evidence. Its potential is persuasive rather than evidential. For it to have value it must be supported by evidence recorded in the case.** 1. There was no evidence to support the unsworn evidence of the child in this case. The trial court did not consider this aspect of the case. 2. It is then clear from the above analysis that the evidence adduced against the appellant fell far short of proving the case against him beyond reasonable doubt. The Appellant was wrongly convicted of the offence. Consequently, I find the appeal to be merited. The conviction entered by the trial court on the appellant is thereby quashed and the sentence thereof set aside. I order the Appellant be set at liberty forthwith unless lawfully held. **Delivered, dated and signed at GARSEN this 3rd day of June 2026.** **J. N. NJAGI** **JUDGE** **In the presence of:** **Mr. Oluoch for Republic** **Appellant – present virtually at G.K. Prison Voi** Court Assistant - Rahma