[1995] KEHC 71 (KLR)
The court found that, despite the circumstances of intoxication and the absence of an identification parade, the complainant and his companions were consistent in their identification of the appellant as the assailant. The trial magistrate believed the prosecution witnesses, and there was no sufficient reason for...
Source-derived case information.
- Citation
- [1995] KEHC 71 (KLR)
- Parties
- Appellant: Michael Wachira Kimani; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 57 of 1994
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; conviction and sentence upheld
- Legal Topics
- Identification Evidence, Burden of Proof, Appeals Against Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Wachira Kimani
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly identified as the assailant of the complainant.
- 2 Whether the conviction was safe in light of the evidence presented, particularly regarding identification and motive.
Ratio Decidendi
The court found that, despite the circumstances of intoxication and the absence of an identification parade, the complainant and his companions were consistent in their identification of the appellant as the assailant. The trial magistrate believed the prosecution witnesses, and there was no sufficient reason for the appellate court to interfere with the conviction and sentence. The court held that the identification evidence, though not ideal, was credible and that the appellant's grounds of appeal did not warrant overturning the conviction. The appeal was therefore dismissed, and the conviction and sentence were upheld.
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The appeal is dismissed.
- The conviction and sentence of the lower court are upheld.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL APPEAL NO 57 OF 1994
MICHAEL WACHIRA KIMANI………….….APELLANT
VERSUS
REPUBLIC …………………………...…..RESPONDENT
JUDGMENT
In brief the evidence of the lower court was that the complaint and two of his companions were coming from a beer hall, as they walked home the complainant stopped to answer a call of nature. He was attacked and hit on the eye. He fell screaming. His two colleagues came to his assistance and the assailant ran away.
They all identified this said assailant as having the appellant. One of them in fact lit a match and was able to recognise the appellant who then ran away.
All three admitted they were drinking at a beer hall prior to walking home.
The appellant denied the allegations but did admit that he was in the same bar and were drinking beer. It was he who first left the bar and the other three followed him.The appellant went home. He was called the following day to see an injured person. He went and noted the complainant was injured. It was he and another who actually took the complainant to hospital. There was no mention then who attacked him.
No mention of the accused being involved was made. They were all drunk.
It is definitely not disputed that the complainant was attacked and sustained serious injuries. The question that arises is whether the assailant was the appellant.
The police received information from the complainant that it was the appellant - all they did was to await the appellant but carried no further investigations as to MOTIVE. What was the motive for the complainant to be attacked y the appellant? It was without a doubt that the complainant and his colleagues were all very drunk. Admittedly the accused may well have been drunk.
Looking at their evidence the complainant stated the appellant came from behind asking whether he was known to the complainant. He was then hit for no reason on the left ey, then heard him long interrogated and ran away.
The second witnesses story was that he actually saw the appellant but the complainant and his colleagues whilst his colleagues saw the accused appellant and asked them if they knew him then hit the complainant with an unknown object. A match was lit and a deep cut on the left eye was noted. He too was then hit.
Throughout the trial there was no evidence led by the prosecution that the accused was the one in the dock. No identification parade had been concluded but despite this the questions asked by the accused appellant to the witness reconfirmed that the appellant made efforts to have a reconciliation understanding later.
The appellant was also well known to the witness.
M/S Kalum advocate came on record when the last prosecution witness was given evidence - namely the doctor. Unfortunately he did not recall the other three witnesses who had given evidence. This would have assisted the defence in making out their defence.
Though present during the appeal, the appellant did not mention a fact that arose in his Memorandum of appeal that the trial a fact that arose in his memorandum of appeal that the trial magistrate...through the prosecution not to have the witnesses answer his questions.
He also mentioned a.…………..between the complainant and himself that occurred earlier in evidence.
In his evidence the appellant denied taking the complainant to hospital but in his appeal he admit as much as does his witness D.W.2.
The trial magistrate believed the prosecution witness.
This court would not interfere with the conviction and sentence. The appeal is otherwise dismissed.
Dated and delivered at Nyeri this 15th day of November, 1995
M. ANG’AWA
JUDGE