[2005] KECA 270 (KLR)
The Court of Appeal found that the conditions under which the alleged identification of the appellants occurred were not conducive to positive identification. The only source of light was a tin lamp, which was extinguished immediately upon the robbers' entry, plunging the room into darkness. The complainant's...
Source-derived case information.
- Citation
- [2005] KECA 270 (KLR)
- Parties
- Appellant: Kesi Kenga Mseke; Appellant: Kasenge Chea Thoya; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 119 of 2003
- Procedural Posture
- Criminal Appeal / Second Appeal From Conviction and Sentence
- Outcome
- appeal allowed; convictions quashed; sentences set aside
- Judges
- AM Githinji, CA Otieno
- Legal Topics
- Robbery With Violence, Identification Evidence, Criminal Procedure Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kesi Kenga Mseke
Appellant
Kasenge Chea Thoya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From Conviction and Sentence
Legal Issues
- 1 Whether the appellants were positively identified as the perpetrators of the robbery with violence.
- 2 Whether the conditions for identification were sufficient to support a conviction.
- 3 Whether procedural irregularities in prosecution affected the validity of the trial.
Ratio Decidendi
The Court of Appeal found that the conditions under which the alleged identification of the appellants occurred were not conducive to positive identification. The only source of light was a tin lamp, which was extinguished immediately upon the robbers' entry, plunging the room into darkness. The complainant's opportunity to observe the assailants was therefore extremely limited. The court held that these circumstances created a real possibility of mistaken identity, rendering the convictions unsafe. Furthermore, both the trial and first appellate courts failed to make specific findings on the issue of identification, which was a critical omission. As a result, the court concluded that the...
Court Disposition
appeal allowed; convictions quashed; sentences set aside
Orders
- The appeal is allowed.
- The convictions are quashed.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: TUNOI, GITHINJI & ONYANGO OTIENO, JJ.A)
CRIMINAL APPEAL NO. 119 OF 2003
BETWEEN
KESI KENGA MSEKE ……………………………………..1ST APPELLANT
KASENGE CHEA THOYA ………………………………...2ND APPELLANT
AND
REPUBLIC ………………………………………………..……RESPONDENT
(Appeal from the Judgment of the High Court of Kenya at Mombasa (Ouna, J & Khaminwa, Comm. of Assize) dated 20th May 2003 in H.C.Cr. Appeal Nos. 17 & 18 of 2002)
JUDGMENT OF THE COURT
The two appellants, KESI KENGA MSEKE and KASENGE CHEA THOYA , were after trial convicted of robbery with violence contrary to section296(2) of the Penal Code and sentenced to death. Their first appeals to the High Court of Kenya at Mombasa were dismissed on 20th May 2003 by Ouna J. and Hon. Khaminwa, Comm. of Assize (as she then was) and hence this second appeal.
The facts presented by the prosecution to the trial court may briefly be stated thus. On 26th November, 2000, the complainant, Charo Karema (PW1) sold his cows and goats at a local market for Kshs.12,000/-. He expended part of the proceeds to buy goods for his two wives. In the evening, at about 7. 00 p.m., while he was engaged in an animated conversation with them in his house which was lit by a tin lamp commonly known as “taa ya kobo”, the door was kicked open and suddenly two people armed with a knife and a stick burst in. They kicked the tin lamp and the house was plunged into darkness. They attacked the complainant and threatened to kill him if he did not give them money. It is apparent that the complainant only parted with the money after he had been seriously injured.
The complainant testified that before the tin lamp was knocked off, he was able to identify the two appellants as his assailants.
Mr. Buti for the appellants has challenged their convictions on the ground that the mentions before the trial court were done in the presence of a police constable, a person not qualified to act as a prosecutor, under section 85 of the Criminal Procedure Code and that the charge was duplex. Mrs. Mwangi for the Republic, however, urges us not to uphold the conviction of the 2nd appellant KASENGE THOYAsince, according to her, he was not properly identified as one of the two persons who robbed the complainant.
As far as we are concerned, the main issue in this appeal is whether the appellants were positively identified as the two persons who viciously attacked and robbed the complainant in his house during the fateful evening.
The house or room, whose size has not been given, was lit by a single tin lamp which was kicked and put out immediately the robbers entered. There was no other kind of light in the house and the robbers disappeared soon after the robbery. To our mind, these conditions were not favourable to proper identification and the chances of a mistake in identifying the robbers cannot be completely ruled out. In the circumstances, the convictions are unsafe. The failure by the trial and the first appellate courts to make any finding on the issue of identification was also fatal to the conviction. As the issue of identification is sufficient to dispose of this appeal, we need not revisit other issues raised by Mr. Buti.
In the result, the appeal is allowed, the convictions are quashed and the sentences of death are set aside. The appellants shall be entitled to their liberty forthwith unless they are lawfully held.
Dated and delivered at Mombasa this 21st day of January 2005
P.K. TUNOI
………………………
JUDGE OF APPEAL
E.M. GITHINJI
……………………..
JUDGE OF APPEAL
J.W. ONYANGO OTIENO
…………………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR