[1987] KEHC 46 (KLR)
The court found that the identification evidence against all four appellants was unreliable due to inadequate lighting at the scene of the robbery and the witnesses' inability to provide descriptions of the suspects in their initial statements. The identification parade for the 4th appellant was conducted after the...
Source-derived case information.
- Citation
- [1987] KEHC 46 (KLR)
- Parties
- Appellant: Mwatha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 67 of 1987
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- ENA Torgbor
- Legal Topics
- Identification Evidence, Robbery, Criminal Procedure, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwatha
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the identification of the appellants by the prosecution witnesses was reliable and sufficient to sustain a conviction.
- 2 Whether the irregularity in the identification parade for the 4th appellant prejudiced his right to a fair trial.
- 3 Whether the 3rd appellant's initial plea of guilty before the amendment of the charge could be relied upon after the amendment.
Ratio Decidendi
The court found that the identification evidence against all four appellants was unreliable due to inadequate lighting at the scene of the robbery and the witnesses' inability to provide descriptions of the suspects in their initial statements. The identification parade for the 4th appellant was conducted after the trial had commenced, constituting a procedural irregularity that could have prejudiced his defense. Additionally, the 3rd appellant's initial indication of a guilty plea occurred before the charge was amended, and there was no subsequent admission after the amendment. Given these deficiencies, the court held that the convictions could not be sustained and that all appellants...
Court Disposition
appeal_allowed
Orders
- The convictions of all four appellants are quashed.
- The sentences imposed on all four appellants are set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CRIMINAL APPEAL NO 67 OF 1987
MWATHA........................................APPELLANT
VERSUS
REPUBLIC.......................................DEFENDANT
JUDGMENT
June 26, 1987 Torgbor J delivered the following Judgment.
The 4 appellants were at first charged with robbery under section 296 (2) of the Penal Code. The charge it appears was subsequently amended and brought under section 296 (1) ie simple robbery. The particulars are that on July 25, 1985 the 4 appellants robbed Loise Gideon of her motor car and cash in the sum of Kshs 250.
The principal state advocate does not support the convictions and sentences because the robbery took place at night and the only opportunity the identifying witnesses had for observing the robbers was through the torch lights used by the robbers which did not produce enough light. Moreover the identifying witness PW 6, PW 7, PW 8 and PW 9 did not give any description of the suspects when they recorded their respective statements at the police station. There is very serious doubt therefore as to whether they were in a position subsequently to give positive identification of the appellants. A further irregularity is that the 4th appellant was identified in a parade conducted after trial had commenced.
His counsel complains that he might have suffered prejudice as a result and it is a complaint I am in sympathy with.
In all I am not satisfied that the identifying witnesses had sufficient opportunity to observe their robbers as the witnesses were closetted in a toilet, and there was a inadequate light to assist the process of identification.
In this appeal the 3rd appellant admitted that he stated before the trial court (p 16) that he wished to plead guilty but the trial magistrate ordered a full trial involving him. It appears that his admission was before the charge was amended and the record does not show that he admitted the offence after the amendment. I would give him the benefit of the doubt and observe that he is very lucky indeed.
In the event the convictions of all four appellants are quashed and the sentences set aside. Enless they are otherwise lawfully held they are to be released forthwith.
Order accordingly.
June 26, 1987
TORGBOR
JUDGE