[2013] KECA 152 (KLR)

IN THE COURT OF APPEAL

AT MOMBASA

(CORAM: GITHINJI, MAKHANDIA & SICHALE, JJ.A.)

CRIMINAL APPEAL NO.270 OF 2011

BETWEEN

1. PETER KIOKO WAMBUA

2. ALEX KIMANZI MUKUU

3. JAIRUS KITHEKA MUNYOKI

4. MULI MUNUVE MUTISO....................................................APPELLANTS

AND

REPUBLIC ….......................................................................RESPONDENT

(Appeal from a conviction and sentence of the High Court of Kenya at Mombasa (Ojwang & Azangalala, JJ.) dated 22nd August, 2011

in

H.C.Cr.C. Nos. 236,237, 238 & 240 of 2009)

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JUDGMENT OF THE COURT

On 26th September, 2006 at about 10 p.m. Kama Abdalla Mbungo (Mbungo), Pashua Juma Pashua (Pashua), Juma Juma Shee (Shee) Kama Mohamed Dosho (Dosho) and Hadija abdalla Ngozi (Ngozi) left Lunga Lunga in Kwale District for Mombasa. They were being driven in a motor vehicle registration number KAQ 330p Toyota Prado owned by Hon. Abdallah Ngozi, the then member for Parliament for Msambweni Constituency. Whereas Dosho was the driver, Mbungo was the Chief for Ranga Location, Pashua was the security detail for Hon. Abdallah Ngozi, Ngozi was the daughter of Hon. Abdalla Ngozi and Shee was a passenger. Their sojourn was however abruptly cut short when on reaching Makongeni area long Msambweni-Diani highway, the motor vehicle suffered tyre punctures of the right front and rear tyre forcing Dosho to pull to the side of the road and stop. Dosho and the other passengers disembarked from the motor vehicle. Immediately Pashua contacted Mr Abdalla Ngozi's wife for assistance since the motor vehicle had only one spare tyre. As they set about to remove the punctured tyres, suddenly they heard gunshots from the forest covering the area and in no time they were surrounded by eight (8) young men who ordered all of them to lie down. They were armed with pangas, bows and arrows. The victims complied with the orders. However, Pashua managed to escape into the forest and hid about three metres from the vehicle. He was soon thereafter joined by Ngozi. The rest were frisked and various items including money and mobile phones taken from them. These items were to form the basis of the charges that were subsequently preferred against the appellants. As Ngozi ran to join Pashua in the forest, she screamed and in the process attracted the young men some of whom pursued her. In the process both Pashua and Ngozi's hideout was bursted and the duo were dragged back and joined the other victims. They were ordered to give out whatever they had. They duly complied. Pashua in particular gave out all the money he had, a cheque in the name of Kwale High School and Certificate of Appointment as a police officer. He had thrown away his mobile phone, but unfortunately it rung as they were being dragged to join the other passengers near the vehicle by some of the attackers, and they took it. After joining the rest and having been forced to lie down as well, and as the assailants continued with their escapade, suddenly a motor vehicle appeared with lights on. This motor vehicle had been sent by Mrs. Abdalla Ngozi to evacuate the driver and his passengers. As the vehicle approached and the assailants sensing danger retreated and or escaped back into the forest. During the robbery, all the victims save Ngozi were said they were able to identify some of the assailants, some of whom are the appellants and one, Moses Mutuku Ndambuki who was however at the conclusion of the trial acquitted under section 215 of the Criminal Procedure Code. The other co-accused, Stephen Mutua Ndonyi was set free by the superior court following a successful appeal.

According to the victims, they were able to identify the appellants both at the scene as well as at the subsequent Police Identification Parades. The identification at the scene was made easy or facilitated by the presence of lots of light courtesy of the vehicle's headlights, hazard lights, lights inside the vehicle as well as the moonlight. They also claimed that the incident took close to 8 or so minutes and that they were in close proximity with the assailants. These circumstances offered them ample opportunity to observe the assailants keenly as to be able to identify them at the scene as wall as at the subsequent Police Identification Parades conducted by IP. Joseph Okisaye (Okisaye) and C.I. Daniel Chacha (Chacha)13 or so days later. Some of the victims were able give general descriptions of assailants. Some were described as being short, black and or brown and with usual refrain that they could identify the assailants if they saw them again. There was even an attempt to describe how some of assailants were dressed.

Once the assailants retreated into the forest the victims entered the vehicle sent to rescue them by Mrs. Abdalla Ngozi and were driven to Msambweni Police Station where they were received by Pc. Paul Lyambila (Lyambila) who took up their complainants. Together with Chacha and Pc. Toroitich they proceeded to the scene. Their attempts to pursue the assailants came to naught and they went back to the police station.

Cpl. Sylvester Olalo (Olalo) and Lyambila were in the meantime manning a police roadblock along Lunga Lunga-Likoni road on 4th October, 2006. An informer contacted them and told them that six suspicious looking people had boarded a motor vehicle registration number KAR 774 (matatu) at Likoni stage headed in their direction. They decided to lay an ambush. The matatu was being driven by Amin Mayienda (Mayienda) with George Odhiambo (Odhiambo) as the conductor. Upon reaching the roadblock they were stopped and commandeered into Msambweni Police Station and all passengers ordered to a light with their luggage. They were then subjected to a physical search. The appellants were passengers in the subject motor vehicle which fact was confirmed by both Mayienda and Odhiambo. When they disembarked, the appellants had various bags in which they had carried hammers, chisels, blunt pieces of iron, caps, torches, a bottle of whisky, a sim card, pangas, clothes, bows and arrows. As they were unable to explain their possession of this items they were detained for further interrogation.

In the meantime Sgt. Charles Mabonga (Mabonga) had been assigned to investigate the incident involving the victims of the robbery on 26th September, 2006 by the District Criminal Investigations Officer (D.C.I.O.) Kwale. On 4th October, 2006, he received information that some suspects had been arrested by Msambweni Police Station at a roadblock with similar nails as those recovered at the scene where the victims were robbed. He was led to the appellants whom he interrogated. During the interrogation, the 1st appellant claimed that he was going to Mrima to see his aunt by the name Mueni whereas the 2nd appellant claimed that he was going to see his girlfriend by the name, Agnes Muthoka. The 3rd appellant claimed that he was visiting a friend called Musyoki whereas the 4th appellant told him that he was proceeding to his home in Chidi area. All the appellants were driven to areas they claimed they were headed when arrested but the results were discouraging. Save for the 4th appellant, the rest simply lied as the people they were intent on seeing and their places did not exist. However, the 4th appellant's residence was confirmed.

Curious that the appellants may indeed have been the assailants who committed the offence on the complainants, Mabonga determined that he must conduct a police identification parade so that the victims can confirm whether these were the people who robbed them. The police identification Parades in respect of the appellants were successful. It was then that he decided to charge the appellants with 4 counts of robbery with violence contrary to section 296(2)of the Penal Code with the following particulars:-

Count I

“On the 26th September 2006 at 10. 30 pm at Makongeni area along Msambweni-Diani highway, of the Kwale District within Coast Province, jointly with others not before court, while armed with dangerous weapons namely a pistol, pangas, arrows with arrow heads, hammer, nails, torches robbed P.C. PASHUA JUMA PASHUA of cash 28,250/- mobile phone sumsung valued at 10,999/-, a cheque of 5000/-, certificate of appointment all valued at 44,249/- and at immediately before or immediately after the time of the said robbery used actual violence to the said PASHUA JUMA PASHUA.”

Count II

“On the 26th September 2006 at 10. 30 pm at Makongeni area along Msambweni-Diani highway, of the Kwale District within Coast Province, jointly with others not before court, while armed with dangerous weapons namely a pistol, pangas, arrows with arrow heads, hammer, nails, torches robbed Kama Abdalla Mbungo of cash 2,400- mobile phone nokia 3310 valued at 5,000/-, identity card and ATM card all valued at Kshs.7,400/- and at immediately before or immediately after the time of the said robbery used actual violence to the said KAMA ABDALLA MBUNGO.”

Count III

“On the 26th September 2006 at 10. 30 pm at Makongeni area along Msambweni-Diani highway, of the Kwale District within Coast Province, jointly with others not before court, while armed with dangerous weapons namely a pistol, pangas, arrows with arrow heads, hammer, nails, torches robbedMOHMED DOSHO of cash 30,000/- and one mobile phone make Nokia 6230 valued at Kshs.18,000/- all valued at 48,000/- and at or immediately before or immediately after the time of the said robbery used actual violence to the said KAMA MOHAMED DOSHO.”

Count IV

“On the 26th September 2006 at 10. 30 pm at Makongeni area along Msambweni-Diani highway, of the Kwale District within Coast Province, jointly with others not before court, while armed with dangerous weapons namely a pistol, pangas, arrows with arrow heads, hammer, nails, torches robbed HADIJAH ABDALLA a mobile phone make Nokia 1600, valued at Kshs 5,000/- and at or immediately after the time of the said robbery used actual violence to the said HADIJAH ABDALLA.”

The appellants and their co-accused returned a plea of not guilty and were subsequently tried. In their defences which were sworn, they all advanced alibi defences. Basically their defences were not focused on the events of 29th September, 2006. The trial court captured them as saying:-

“Accused 1 opted to give a sworn defence in which he stated that on 28/10/06, he left Miritini and on reaching home found a message from his father regarding his aunt who was sick. That on 4/11/06, he went to Likoni and took a matatu heading to Mrima to check on her aunt and on reaching Msambweni roadblock, the vehicle was stopped and all were ordered to get out with their ID/Cards which he did not have. That the Deputy OCS said it was not possible to forget an IF/Card. He was thoroughly beaten and his 350/- taken. He was placed in the cells before being transferred to Lunga Lunga police station. He was then led to his house in Mikindani and later placed in a parade to which he objected. He was then charged with 5 others he did not know. He called no witness.”

As for the 2nd appellant who was the 3rd accused, he“also gave a sworn defence in which he stated that on 4/10/06 at about 5. 00 p.m he went to Lunga Lunga matatu stage to visit one Agnes Muthoka. That he paid 100/- fare and at Msambweni roadblock, they were stopped and passengers ordered out with their ID/Cards and luggage. Then at the police station, one officer accused him of incitement and he was placed in the cells. He was later taken to Lunga Lunga police station and placed n a parade which he agreed to participate in, but that same was in a football pitch with 9 others. That the 4 witnesses who came never identified him but the parade officer filled the form wrongly that he had been identified. He was later charged with what he did not know about. He also denied that someone paid his fare. He called no witness.”

The 3rd appellant was the 4th acused. He too “gave a sworn defence that on 4/10/06 at about 4. 10 pm., he boarded a matatu at Likoni for Lunga Lunga and he paid fare of 160/= and that their vehicle was stopped at Msambweni roadblock and they were ordered to identify themselves and was arrested for not having an ID/Card. That he later led the police upto his home in Kongowea but nothing was recovered from him only to be charged with 2 cases of preparation to commit a felony and robbery with violence. He denied the charges herein. He also called no witness.”

Finally, the 4th appellant who was“5th accused also gave evidence on oath and stated that on 4/10/06 at about 4. 00 pm he took a matatu to Lunga Lunga with no luggage, and paid 180?= fare. That the vehicle was stopped at Msambweni roadblock and passengers were ordered out with identification documents which he did not have leading to his arrest. That the police assaulted him and took his 8,000/-, and searched his house and took his phone and sim card. He was then taken to an identification parade and later charged with the 2 cases which he denies to date. ”

At the conclusion of the trial, the learned Magistrate was satisfied that the prosecution had proved its case beyond reasonable doubt against the appellants and the 6th co-accused, Stephen Mutua Ndonyi, in respect of Counts I, II and III. He acquitted all of them on Count IV for want of sufficient evidence as even the complainant in respect of that count did not testify. He too acquitted the 2nd co-accused, Moses Mutuku Ndambuki of all the charges at this stage.

Upon conviction the learned Magistrate sentenced each of the appellant and the co-accused to death on all the counts. Let us pose here! This Court has said time without number that it is improper to sentence an accused person to death on more than one count. A person can only be hanged once. That being the case, if he is hanged in Count I, how will he again be available to be hanged in respect of the other counts It is simply impracticable. That is why it is desirable that the trial court sentences such an accused person in respect of one count and holds the others in abeyance. That is the sensible thing to do. The superior court correctly appreciated this fact and made an appropriate intervention.

Be that as it may, the appellants and the co-accused felt dissatisfied with the conviction and sentence, hence the appeals to the superior court. Their respective appeals were consolidated and heard by Ojwang & Azangalala, JJ (as they then were) which ended in dismissal, hence this second and perhaps last appeal before us.

The appellants have raised similar grounds of appeal to wit:

“1. That both the learned Hon. Trial magistrate and the first appellate court Hon Judges erred in Law by convicting and sentencing me without considering that the charges as drawn against me were not proper hence defective.

That both the learned Hon Trial magistrate and the first appellate court Hon. Judges erred in law in conviction and sentence relying on the visual identification evidence without considering that the same was not fee from possibility of error hence mistaken identify.

That both the learned Hon Trial magistrate and the first appellate court Hon. Judges erred in Law in conviction and sentence while relying on the identification parade evidence without considering that the first report given does not reveal any identification hence the parade was flown. (sic)

That both the learned hon Trial magistrate and the first appellate court Hon. Judges erred in Law in conviction and sentence while relying on the source of my arrest and recovery which were not proved against me as required by the court.

That both the learned Hon. Trial magistrate and the first appellate court Hon. Judges erred in Law in failing within their jurisdiction to know that the appellant being a lay man in law was not enlightens (sic) on how I could give my defence evidence section 211 of the C.P.C. Was not complied with.”

When the appeal came before us for hearing on 10th July, 2013, the appellants had appointed Mr. Lumatete Muchai, learned counsel to appear for them, whereas the State was represented by Mr. Robert Oyiembo, learned Assistant Director of Public Prosecutions.

In support of the appeal, Mr. Lumatete submitted that the offence was committed at night. Accordingly the appellants' identification by the victims could not be free from possibility of error. Indeed the appellants complained that they were not satisfied with the manner in which the identification parades were conducted and gave the reasons. Yet the trial and first appellate courts did not comment on the same. Counsel further submitted that there was heavy reliance on identification at locus in quo, yet none of the victims gave any unique features about the appellants that made them identify them. There were gunshots which must have frightened the victims making their identification of the appellants difficult. A frightened man cannot identify an assailant, counsel further thundered. To counsel, the identification of the assailants at the scene was in serious doubt and any purported identification if at all must have been dock identification which is of little evidential value. Finally counsel submitted that given the contradictions between the statements they recorded with the police and the evidence they gave in court, it was unsafe to convict the appellants. The sentence of death is the worst form of sentence. Therefore the court must be completely satisfied that the evidence against the appellants is overwhelming in order to find a conviction. This was not the case here. He therefore prayed that the appeal be allowed on those grounds.

In response and in opposing the appeal, Mr. Oyiembo submitted that the two courts below were of the concurrent opinion that the appellants were positively identified at the scene and subsequently during the Police Identification Parades. They were enabled to do so by the presence of moonlight and lights from the motor vehicle. The identification of the appellants being safe, he urged us to dismiss the appeal.

This is a second appeal. By dint of the provisions of section 361(a) of the Criminal Procedure Code, our jurisdiction is confined to matters of law only, unless it is demonstrated to us that the first appellate court considered matters it ought not to have considered or that it failed to consider matters it ought to have considered or that looking at the entire decision on such matters that the court was plainly wrong. If that be the case our consideration of such matters will amount to considering matters of law as in such cases, it would be accepted that the first appellate court failed to revisit the evidence that was before it afresh, analyse it and evaluate it as required by it in law.

Both courts below were alive to the fact that the prosecution case stood or fell on the evidence relating to the identification of the appellants. In considering the issue of identification, the learned Magistrate stated as follows:

“This witness(PW1)was categorical that there was moonlight and on (sic) the lights of the vehicle were on including the headlights, parking and hazard lights and also lights from inside the vehicle making the scene be well lit and in the process making it possible for him to identify at least 2 of the attackers who attacked and robbed him and PW7 Khama Mohamed Dosho) as they were close enough. ...This witness (Khama Mohamed Dosho also confirmed that indeed there had been bright light at the scene as all the vehicle lights were on … Through the light at the scene he identified accused 1 who had taken the car keys and added that he got the opportunity to identify him as he pleaded with him to give back the keys. He also identified accused 3 who had searched PW1 and accused 5 as the one who had been searching inside the vehicle also while armed with a panga. He later identified them both at the parades held and added that since he had clearly marked the voice of accused 1, he requested at the parade that members all give and an order and picked out accused 1 … This witness (Pashua Juma Pashua) confirmed that he had been at the front of the vehicle when they were attacked and he managed to hide in the bush from where he could see clearly as the scene near the vehicle was well lit. That as he hid, he managed to see well and identify accused 1 who had a panga and accused 5 who had been inside the vehicle searching all over … He later duly identified both accused 1 and 5 at the parades … There was further corroboration of the evidence of the 3 witnesses above though (sic) PW5, Juma Juma Shee, another of the victims, who did not lose any property from the attack. He also confirmed that the attack took place and that there was bright light at the scene. He had been at the front of the vehicle when they were first attacked. Whereas he did not identify the one who searched him, he identified accused5 who was searching inside the vehicle through the lights inside the vehicle and also as the rescue vehicle approached. He duly identified him at the identification parade. Held ...”

The superior court went through similar analysis of evidence, stating as follows:-

“...The crucial sphere of evidence that must determine the outcome of this appeal is identification. Were the applicants (sic), or any of them identified as having participated in the night-robbery in question? Chief Khama Abdala Mbungo (PW1) has given corroborated evidence that the locus in quo was sufficiently well-lit to enable him to identify 2nd and 3rd appellants, and that he later identified them at duly conducted Identification Parades. Pc. Pashua Juma Pashua (PW2) confirmed that there was sufficient lighting at the locus in quo, and that he was able to identify 1st and 4th appellants herein; and he later attended duly conducted identification parades and again, identified 1st and 4th appellants. Juma Juma Shee (PW5) testified on the circumstances enabling him to identify 4th appellant at the locus in quo; and said he had attended an Identification parade and formally identified this particular suspect. PW7 Khama Mohamed Dosho gave testimony on the circumstances in which he was able to perceive several of the appellants, at the locus in quo, and subsequently he attended duly-conducted identification parades, and identified 1st appellant, 2nd appellant and 4th appellant. While ruling that the criminal incident in question took place in the night, we observed that there is overwhelming evidence that there was sufficient light at the locus in quo, to facilitate the identification of the suspects ...”

There are therefore concurrent findings made by the two courts below that the appellants were properly identified as the robbers. We are supposed to pay homage to such findings. We have however re-examined the evidence upon which that conclusion was made, and find that it was not well founded. In effect we are saying that the superior court did not carry out exhaustive re-evaluation and re-examination of the evidence tendered before the trial court as required of the first appellate court. As for the trial court, it did not appreciate sufficiently the need to subject the evidence of identification to cautious examination before reaching the verdict that the appellants were guilty. We have grave doubts that the appellants were actually identified at the locus in quo given the prevailing circumstances during the robbery. The circumstances of the appellants and their subsequent conviction for the offence of preparing to commit a felony based on the items that were found in their possession with and their inability to lead the police where they claimed to be headed may have provided the police with the suspicion that they may somehow have been involved in the incident. There may well have been strong suspicion against the appellants but suspicion as we all know, however strong, will not provide a basis for a conviction in the absence of other credible evidence.

The law is now well settled on the standard of proof that the court need to exercise before relying on and convicting an accused person on the evidence of visual identification or even of recognition, granted though that identification by recognition is more assuring than identification of a stranger particularly in circumstances like at night and by a single witness. Such evidence should be tested with greatest care especially when it is known that conditions favouring a correct identification were difficult. See Maitanyi v Republic [1986] KLR 198andWamunga v Republic [1989] KLR 424.

This Court differently constituted in Wamunga's case bemoaned the injustice that is at times caused by evidence of identification and the need for the trial courts to approach such evidence with careful circumspection. This is what the Court had to say:-

“Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on correctness of one or more identification of the accused which he alleges to be mistaken the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification.”

The need for such caution is no longer limited to the evidence of visual identification by a single witness in difficult circumstances. It even extends to where the prosecution relies on such evidence from more than one witness. Such evidence should be watertight to justify a conviction. See also Kiarie v Republic [1984] KLR 739.

In this case there is common ground that the incident took place at night and in a forested area. The victims were taken by surprise or startled when after stopping to remove the punctured tyres gunshots rung and they were ordered to lie on the ground. All the victims complied. Although Pashua, managed to escape and ran into the bush, he was soon thereafter bursted, caught and brought back to join others on the road following the blowing up of his cover by Ngozi as she escaped from the motor vehicle towards him whilst screaming. Certainly all these victims were shaken by the turn of events. Indeed Mbungo conceded that fact. He stated under cross-examination by the 1st appellant that “... The incident was unexpected. I first heard a gunshot and I got scared. I obeyed the orders ...” Cross-examined by 3rd appellant, he stated thus “All of us were scared ...” Pashua conceded too under cross-examination by 4th appellant that he was scared. He stated thus: “I was scared but I could see well.” Similarly Shee under cross-examination by 4th appellant stated “when the order came, I lay down I was scared ...” Finally, with regard to Dosho, he conceded in his examination in chief that “As they searched me, they were talking ordering me to give them everything. One even raised a panga to hit me I pleaded with them not to harm me.” Under cross-examination by 1st appellant he stated “when I heard the gunshots, I got scared, but did not lose my mind.” Cross-examined by the 2nd appellant he stated “when I heard the gunshot I got scared ...”

Given those conditions and the fact that all the victims were lying on the ground, we entertain doubts as to whether they had the presence of mind to focus on the attackers as to be able to identify them or any one of them. We are in no doubt at all that the victims were filled with fear and trepidation when confronted with such large group of people at night, in an isolated place and in a forest. Those circumstances must have impaired or impeded the victims' sense of judgment and their identification cannot therefore pass the test of being free from the postibility of error.

Both courts below believed that there was sufficient light at the scene of crime that enabled the victims to identify their assailant. However, both courts failed to adhere to the guidelines set out by this Court in the case of Maitanyi (supra) with regard to testing the evidence with regard to light at the locus in quo. The Court stated:-

“It is at least essential to ascertain the nature of the light available. What sort of light, its size and its position relative to the suspect; are all important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are known because they were not inquired into. In days gone by there would have been a careful inquiry into these matters, by the committing magistrate, state counsel and defence counsel. In the absence of all these safeguards, it now becomes the great burden of Senior Magistrates trying cases of capital robbery to make these inquiries themselves. Otherwise who will be able to test with the greatest care.”

In this case no inquiry of any sort was made. The trial magistrate was contend to hold that though the victims were intensely cross-examined on the aspect of light at the locus in quo they remained firm and were not shaken. However that was a misdirection.The issue was not whether or not they were shaken in cross-examination. The issue was whether both the courts and prosecution had made the above inquiries regarding the light. Yes, there may have been light provided by the motor vehicle. However how intense was it, where was it in relation to the attackers, how long were the attackers under the observation by the victims as to enable them see them sufficiently to be able to identify them. These were the concerns that were not inquired into. From the evidence on record, none of the victims claimed that the light so provided was bright. Of course some of the victims claimed that there was moonlight as well. Again the intensity of the moonlight, its size and position vis a vis the attackers was not inquired into. Some of the victims testified to the fact that attackers had torches. If indeed there was moonlight and the vehicle provided such bright light, what would have necessitated the attackers to approach the victims with the torchlights on.

It is also clear from the evidence that the attackers did not approach the victims in the path of the headlights. They approached from the sides of the vehicle. From this direction, it was well nigh impossible for the victims to notice them sufficiently to be able to identify them. The story would probably be different had they approached them directly in the path of the headlights which were on. From their approach, the only light which would probably have assisted in their identification was the light from inside the vehicle as well as hazard lights. Once again we were not told how intense the light inside the vehicle was, its size and position in relation to the attackers. It is common knowledge that such light does not shine far. Again some of the victims were at the back of the vehicle whereas others were infront trying to remove the punctured tyres. In those circumstances how was it possible to identify the appellants who shot their way to the vehicle. As already stated, the victims were filled with mortal fear when confronted with the attackers.Coupled with this they were immediately ordered to lie on the ground on their stomachs with their faces on the ground, infact on the road and were hustled all the time.

Other victims talked of the hazard lights of the motor vehicle enabling them see the assailants clearly to be able to identify them. This is highly unlikely and improbable. It is obvious that hazard lights flicker constantly. In the process they distort anything that comes its way, human beings included. If assailants' appearances were distorted with the constant flickering of the hazard lights, it is unlikely that the victims would have identified them by such light.

There was evidence that the 4th appellant was identified on the basis that he was the one who entered the motor vehicle and searched it for a while. The lights inside the vehicle were all the time on. However we do not appreciate how someone lying on the tarmac with his face downwards can be able to see someone in the vehicle. Even if such a person was lying on his back, it is still difficult and even improbable for such a person to see another inside such a high vehicle, a 4x4 Prado vehicle. Even for Pashua who claimed to have seen the 4th appellant as he hid in the bush it is still difficult to appreciate how he could have done so considering that in his evidence, he stated that the said appellant was busy searching the vehicle for things to steal. He must have been in a bent position for one cannot stand upright in this kind of vehicle. If that be the case, we doubt highly that Pashua would have seen the face of the 4th appellant sufficiently to be able to identify him subsequently.

Then there is the element of voice identification. Dosho claimed that he was able to identify the 1st appellant's voice. That the 1st appellant had at the locus in quo ordered the victims “kila mmoja atoe chochote.” At the police identification parade he requested the police officer conducting the parade to ask each parade member to repeat the command. All the parade members complied following which he was able to identify the 1st appellant by voice as the one who issued the command. In our view this evidence was wholly unreliable and unsatisfactory. There is no evidence that this witness was familiar with the voice of this appellant. This was a one off incident and it is unlikely in those circumstances that one would identify a voice of stranger as to be able to internalise it and subsequently remember it. There cannot be identification by voice or reliable identification by voice unless the identifying witness is able to say whose voice it was. In other words “evidence of voice identification is receivable and admissible in evidence and it can, depending on the circumstances, carry as much weight as visual identification. In receiving such evidence, care would be necessary to ensure that it was the accused's person's voice, that the witness was familiar with it and recognised it and that the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who had said it ...” See Choge v Republic (1985) I KLR 1. Certainly it is questionable in this case that the circumstances obtaining at the locus in quo would have enabled the witness to identify the 1st appellant's voice. Dosho did claim to be familiar with the 1st appellant's voice nor could they confidently assign that voice to the 1st appellant.

We cannot conclude this judgment without revisiting the issue of police identification parades. It is instructive that all the appellants were allegedly identified in each of these parades by the victims. However, what is surprising is that all the victims did not give a description of the assailants to Lyambila who received the first report from them. This is evident from OB entry No.34 of 26th September, 2006. Following the application by the 3rd appellant for the OB regarding the incident to be availed, it was duly availed during the testimony of Mr Chacha. His evidence on the same was along these lines:-

“I know about the first report of the OB herein as it is me who wrote the OB report OB 34 26/9/2006 at about 11. 26 p.m. says report of robbery by No.75417 PC Pashua Juma security-officer of Hon Abdalla Ngozi. This report does not give the descriptions ...”

And when cross-examined by the 4th appellant, he restated his position that:-

“It is true the first report does not have your descriptions ...”

It is noteworthy that one of the victims, Pashua was a police officer, who should know better the need to give descriptions of the assailants in a first report for purposes of subsequent police identification parade. In view of the emphatic statement in the OB, the subsequent claims by the victims that they gave descriptions of the assailants to the police in their first reports can only be taken with a pinch of salt. They were lying. Even if it was true that they gave such descriptions, they would have been of little consequence as they were generalised. Some of the assailants were described as short, dark or even brown. Others merely said that if I saw the assailants again I would recognise them. As stated Maitanyi case:-

“... There is a second line of inquiry which ought to be made and that is whether the complainant was able to give some description or identification of his or her assailants; to those who came to the complainant's aid, or to the police … If a witness receives a very strong impression of the features of an assailant, the witness will usually be able to give some description. If on the other hand the witness says that he or she could not identify the person, then a later identification or recognition must be suspect, unless explained ...”

We think that the failure by the victims to mention to Lyambila and Chacha at the earliest opportunity the fact that they had identified the attackers and then proceeded to give their descriptions can only weaken their evidence. It is trite law that before a proper police identification parade is conducted a witness should have been asked and provided the descriptions of the suspect. This was not done in the circumstances of this case. Since we are satisfied that there was no identification of the appellants at the scene or if there was such identification, it was not free from possibility of mistake and further since there are doubts as to whether identification parades were properly carried out for want of description of the appellants in the victims first report, the subsequent identification of the appellants can only be termed as dock identification. It is trite law that dock identification is generally worthless and a court should not place much reliance on it. See Fredrick Ajode Ajode v Republic (2004) 2 KLR 81.

We think that we have said enough on this issue of visual identification to show that despite the concurrent finding by the two courts below on the same, we are far from being satisfied that the concurrent findings are supportable in law and fact. It is obvious that the two courts below did not consider and appreciate the salient features regarding visual identification evidence in difficult circumstances and which was a serious misdirection.

Accordingly, we allow the appeal, quash the conviction and set aside the sentences imposed. Unless otherwise lawfully held, the appellants should be set at liberty forthwith.

Dated and delivered at Malindi this 23rd day of October, 2013.

E. M. GITHINJI

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JUDGE OF APPEAL

ASIKE-MAKHANDIA

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JUDGE OF APPEAL

F. SICHALE

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JUDGE OF APPEAL

I certify that this is a

true copy of the original.

REGISTRAR