[1987] KECA 38 (KLR)
The Court found that the appellant was properly identified by two eyewitnesses who knew him well and saw him running from the scene with a stick after the deceased was fatally injured. Their testimony corroborated the deceased's dying declaration that the appellant struck him. The incident occurred in broad...
Source-derived case information.
- Citation
- [1987] KECA 38 (KLR)
- Parties
- Appellant: Nyabind s/o Ojal; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 25 of 1987
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Dying Declaration, Identification Evidence, Medical Evidence, Failure to Call Witness, Appeals, Homicide
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyabind s/o Ojal
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly identified as the person who fatally injured the deceased.
- 2 Whether the failure to call the surgeon who operated on the deceased was fatal to the prosecution case.
- 3 Whether the dying declaration of the deceased was sufficiently corroborated.
Ratio Decidendi
The Court found that the appellant was properly identified by two eyewitnesses who knew him well and saw him running from the scene with a stick after the deceased was fatally injured. Their testimony corroborated the deceased's dying declaration that the appellant struck him. The incident occurred in broad daylight, further strengthening the reliability of the identification. Although the surgeon who operated on the deceased was not called to testify, the court held that this omission was not fatal to the prosecution's case because the nature of the wound was visible and matched the postmortem findings. The court also noted that the relevant Minister should be moved to act under section...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU
(CORAM:NYARANGI, GACHUHI & PLATT JJA:
CRIMINAL APPEAL NO 25 OF 1987
NYABIND s/o OJAL…………………………APPELLANT
V
REPUBLIC……………………………..RESPONDENT
JUDGMENT
In this appeal Mr Nyamori for the appellant very properly has urged every possible point in favour of the appellant . However, Yuanita PW 3 and Rose PW 5 saw the appellant running away form the scene where the deceased collapsed after he was fatally injured. The two who knew the appellant well did corroborate the deceased’s dying declaration that the appellant hit him at the stomach with a stick because they saw the appellant running away with a stick and also saw a swelling on the stomach. The incident took place during broad daylight.
The judge considered all the evidence including the testimony of the provincial Psychiatrist. The surgeon who operated the deceased ought to have given evidence as to the injuries on the deceased. The failure to call the surgeon is not in this case fatal because the actual would could be seen and matches the evidence of the postmortem examination. The Minister concerned should be moved to act under subsection (6) of section 166 of the Criminal Procedure Code. In the result, the appeal is dismissed.
Those are the orders of the court.
June 17, 1987
NYARANGI, PLATT & GACHUHI JJA