[2001] KECA 38 (KLR)
The Court of Appeal found that the conviction could not be sustained because the identification of the appellant by the sole witness occurred three months after the robbery, during which time the appellant's appearance had changed. Both the trial and first appellate courts misdirected themselves by assuming the...
Source-derived case information.
- Citation
- [2001] KECA 38 (KLR)
- Parties
- Appellant: Ngumbao Luweti Bindo; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 82 of 2001
- Procedural Posture
- Criminal Appeal / Second Appeal; Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless held for other lawful cause
- Legal Topics
- Identification Evidence, Robbery With Violence, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngumbao Luweti Bindo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal; Judgment
Legal Issues
- 1 Whether the identification of the appellant by a single witness three months after the robbery was reliable and free from doubt.
- 2 Whether the misdirection regarding the timing of the identification parade affected the safety of the conviction.
Ratio Decidendi
The Court of Appeal found that the conviction could not be sustained because the identification of the appellant by the sole witness occurred three months after the robbery, during which time the appellant's appearance had changed. Both the trial and first appellate courts misdirected themselves by assuming the identification parade was held within one month of the offence, depriving themselves of the opportunity to properly assess the reliability of the identification. Given these circumstances and the absence of corroborative evidence, the court held that the identification was not free from doubt and the benefit of doubt must be given to the appellant. Consequently, the conviction was...
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless held for other lawful cause
Orders
- The appeal is allowed.
- The conviction recorded against the appellant is quashed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT MOMBASA
CORAM: OMOLO, SHAH & O'KUBASU, JJ.A.
CRIMINAL APPEAL NO. 82 OF 2001
BETWEEN
NGUMBAO LUWETI BINDO .................................. APPELLANT
AND
REPUBLIC .............................................. RESPONDENT
(Appeal from a Judgment of the High Court of Kenya at Mombasa (Hon. Mr. Justice Hayanga & Comm. Shah) dated 7th July, 2000 in H.C.CR.A. NO. 116 OF 1998) ***************
JUDGMENT OF THE COURT
We think the conviction of this appellant on the charge of robbery under section 296(2) Penal Code cannot be sustained on the recorded evidence. The robbery, the subject of the charge against the appellant, occurred on the 31st October, 1997 and there was only one identifying witness, Vital Sabatina who was also the victim of the robbery.
She said in her evidence that at the time of the robbery the appellant wore a long beard and long hair, but that by the time of the identification parade at which she picked out the appellant the appellant had shaved off the beard and trimmed the long hair. But she insisted she was still able to identify the appellant because the appellant's "mouth and eyes are the same." She did not attempt an explaination as to why she was able to remember the mouth and the eyes. The parade at which the appellant was identified was conducted on 25th January, 1998, some three months after the robbery.
However, both the trial Magistrate and the first appellate court proceeded on the basis that the parade was held within one month from the date of the robbery. As Mr. Gumo concedes, this was a misdirection which deprived both courts below of the chance to consider whether Sabatina could have been able to remember the mouth and eyes of the appellant some three months after the robbery. We are unable to say that had the two courts below correctly directed themselves on this point, they would still have come to the conclusion that Sabatina's identification of the appellant was free from any doubts. As we are unable to make that conclusion on a second appeal we must give the benefit of doubt to the appellant with the result that we allow his appeal, quash the conviction recorded against him, set aside the sentence of death and order that he be released from prison forthwith unless he is held for some other lawful cause.
Dated and delivered at Mombasa this 18th day of July, 2001.
R.S.C. OMOLO
..........................
JUDGE OF APPEAL
A. B. SHAH
.........................
JUDGE OF APPEAL
E. O. O'KUBASU
.........................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR