[2003] KECA 126 (KLR)
The Court found that the identification evidence against the appellant was insufficient and unreliable. The two prosecution witnesses merely stated that they identified the appellant without specifying the features or circumstances that enabled such identification. The Court noted that the identification occurred as...
Source-derived case information.
- Citation
- [2003] KECA 126 (KLR)
- Parties
- Appellant: Michael Mburu Njonjo; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 61 of 2002
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
- Judges
- JE Gicheru, E Owuor
- Legal Topics
- Identification Evidence, Robbery With Violence, Burden of Proof, Standard of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Mburu Njonjo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the identification evidence against the appellant was sufficient to sustain a conviction for robbery with violence under section 296(2) of the Penal Code.
- 2 Whether the conviction of the appellant was safe in light of the quality of evidence presented.
Ratio Decidendi
The Court found that the identification evidence against the appellant was insufficient and unreliable. The two prosecution witnesses merely stated that they identified the appellant without specifying the features or circumstances that enabled such identification. The Court noted that the identification occurred as the robbers were leaving the scene, making it unclear whether the witnesses had a clear view of the appellant. The lack of detailed evidence and the casual nature of the investigation led the Court to conclude that the conviction was unsafe. Consequently, the Court allowed the appeal, quashed the conviction, set aside the death sentence, and ordered the appellant's immediate...
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction for robbery contrary to section 296(2) of the Penal Code is quashed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: GICHERU, LAKHA & OWUOR, JJ.A)
CRIMINAL APPEAL NO. 61 OF 2002
BETWEEN
MICHAEL MBURU NJONJO .................................APPELLANT
AND
REPUBLIC ............................................RESPONDENT
(Appeal from the Judgment of the High Court of Kenya at
Mombasa (Mr. Justice Onyancha & Khaminwa, Comm. of
Assize) dated 4th March, 2002
in
H.C.Cr. Appeal No. 83 of 2000)
*****************
JUDGMENT OF THE COURT:
JUDGMENT OF THE COURT:
This appeal turns on the identification of the appellant as one of the robbers who on the night of 15th and 16th May, 1999 at Bombolulu village in Mombasa while armed with pangas robbedWALTER ONGORO OYONDI (P.W.1) of a Sanyo Television Set, a Phillips Radio Cassette Player, a BMX bicycle, a Calculator, a Weighing Machine besides other assorted shop goods and cash in the sum of K.Shs. 6,000/=. In the course of the robbery, P.W.1 was hit several times on the head with the flat side of the panga. Adjacent to the scene of the robbery which was a shop wherein P.W.1 operated some business, were two 4 feet fluorescent tubes security light at Bombolulu workshop. According to P.W.1, the area leading out of the scene of the robbery was well-lit. After the robbery, P.W.1 and one of his workers -DAVID KAMAZA (P.W.2)- saw the robbers leave the scene with the stolen goods through the well-lit area adjacent to Bombolulu workshop. According to the two prosecution witnesses, they identified the appellant in the light referred to above as they knew him well since he frequented the room of a girl next to their room. Neither of these two witnesses testified as to what features made them identify the appellant. Indeed, in testifying that he recognised the appellant as someone he had been seeing around,P.W.1 did not in the least outline the basis of his recognition of the appellant nor did P.W.2. By the two prosecution witnesses barely saying that they identified the appellant without more, a sense of incertitude pervades the case for the prosecution against the appellant. Indeed, this kind of evidence does not inspire confidence in sustaining a conviction for the offence of capital robbery under section 296(2) of the Penal Code .
Besides, as the identification of the appellant is alleged to have taken place as the robbers left the scene of the robbery in which case it is unclear whether the robbers were facing the two prosecution witnesses as they left, it is doubtful whether reliance on the bare statements of the two prosecution witnesses as to the identification of the appellant may not occasion a failure of justice. Indeed, as was correctly stated by counsel for the appellant, Mr. Ngombo, in his submissions to this Court at the hearing of this appeal on 22nd January, 2003, it would appear that there was insufficient investigation in the case against the appellant and his prosecution was casual. Hence the inadequacy of the identification evidence against him.
From what has fallen from our lips, we think that the appellant's conviction was unsafe and in the result we allow his appeal, quash his conviction for the offence of robbery contrary to section 296(2) of the Penal Code ,set aside his death sentence and order that he be set at liberty forthwith unless held in custody for any other lawful cause.
Dated and delivered at Mombasa this 24th day of January, 2003.
J.E. GICHERU
...............
JUDGE OF APPEAL
A.A. LAKHA
...............
JUDGE OF APPEAL
E. OWUOR
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR