[2021] KEHC 9583 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL CASE NO. 1 OF 2013

REPUBLIC........................................................PROSECUTOR

VERSUS

1. VALENTINE MALOBA

2. KOKONYA MUKHUSINI AMUKOYA

3. NICK SAVIOUR OUMA.......................................ACCUSED

JUDGMENT

1. Valentine Maloba, Kokonya Mukhusini Amukoya and Nick Saviour Ouma are charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that on the 14th day of January 2013, at Bumala Shopping Centre within Busia County in Western Province, together with others not before court murdered John Opiyo Odhul.

3. On the 14th day of January 2013 U.D.F party was to hold a political rally at Bumala. Apparently, there were clashes between the U.D.F and O.D.M supporters. Several people were injured while the deceased herein was fatally injured. The accused persons were alleged to be part of the people who injured the deceased herein.

4. The first accused in his defence contended that he was a victim of mob beating and denied any involvement in the death of the deceased. Kokonya Mukhusini Amukoya, the second accused and Nick Saviour Ouma, the third accused, each pleaded an alibi.

5. The issues for determination are:

a) Whether any of the accused was identified as one of the people who fatally beat the deceased;

b) Whether the alibi defence of the accused 2 & 3 has been displaced; and

c) Whether the offence of murder was established.

6. The evidence of Daniel Duncan Omondi (PW1) raises three issues. The first is whether in the circumstances he was able to identify the first accused in the manner he said he did. According to him, he identified him when he turned and looked behind. At the time, he was being pursued by a gang that he described as U.D.F supporters. In the case of R. vs. Turnbull and Others [1976] 3 All ER 549 Lord Widgery CJ stated as follows:

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be make.How long did the witness have the accused under observation?At what distance?In what light?Was the observation impeded in any way, as for example by passing traffic or a press of people?Had the witness ever seen the accused before?How often?If only occasionally, had he any special reason for remembering the accused?How long elapsed between the original observation and the subsequent identification to the police?Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given.In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them.Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.Recognition may be more reliable than identification of a stranger: but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relative and friends are sometimes made.

In the prevailing circumstances, this witness was not in a position to identify any of his assailants.

7. The second issue is why he never mentioned the name of the first accused to the police and yet in his evidence he claimed that he knew him as Vale and that he had transacted some business for his friend.

8. The third issue is on the identification parade. Identification parades are not conducted in respect of people who are recognized but in respect of strangers, whom witnesses claim that given a chance, they can be able to identify the perpetrator. Since he claimed to have known the first accused, one wonders the value of the identification parade.

9. Even if we assume that the first accused was a stranger to him, the parade was not proper. This witness testified that among the members of the parade were police officers. Members of the parade are supposed to be close in height stature and station in life. In this case it was very simple to eliminate police officers and be left with civilian members whom we do not know the number. This parade contravened chapter 42 paragraph 7 (5) (d) of the National Police Service Standing Orders (infra). This identification parade was therefore worthless.

10. The evidence of Hellen Navuri Kabuli (PW2) was that she identified the first accused. She did this while testifying in court. She had not previously identified him. This is therefore dock identification. As a general rule, dock identification is worthless. In the case of Ajode vs. Republic [2004] eKLRthe Court of Appeal stated:

It is trite law that dock identification is generally worthless and a court should not place much reliance on it unless it has been preceded by a properly conducted identification parade.

11. Earlier the same Court in Muiruri & Others versus Republic (2002) 1KLR 274held:

It is believed because an accused sits in the dock while witnesses give evidence in a criminal case against him, undue attention is drawn towards him. His presence there may in certain cases a witness to point him out as the person he identified at the scene of a crime even though he might not be sure of that fact. It is also believed that the accused’s presence in the dock might suggest to a witness that he is expected to identify him as the person who committed the act complained of…we do not think it can be said that all dock identification is worthless. If that were to be the case then decisions like Abdulla bin Wendo versus Republic (1953) 20 EACA 166, Roria versus Republic (1967) EA 583 and Charles Maitanyi versus Republic (1986) 2KLR 76 among others, which over the years have been accepted as correctly stating the law concerning the testimony of a single witness on identification will have no place in our jurisprudence. In those cases the courts have emphasised the need to test with greatest care such evidence to exclude the possibility of mistaken identification before such evidence is accepted and acted upon to found a conviction. We do not think that the evidence will be rejected merely because it is dock identification evidence. The court might base a conviction on such evidence if it is satisfied on facts and circumstances of the case the evidence must be true and if prior thereto the court warns itself of the possible danger of mistaken identification.

The evidence of this witness has no probative value for we do not know whether the purported identification in court was genuine or not. We cannot be able to tests her truthfulness and accuracy of memory.

12. Rose Akinyi Odhiambo (PW3), Ruth Akeno Omondi (PW5) and Juma Dennis Oluoch (PW14) participated in identification parades and purported to identify the accused persons herein.

13. For the evidence of identification to have some probative value, the identification parade must comply with the laid down procedure. The Court of Appeal in David Mwita Wanja & 2 others vs. Republic [2007] eKLR emphasized on the importance of a properly conducted identification parade and expressed itself as follows:

The purpose for, and the manner in which, identification parades ought to be conducted have been the subject matter of many decisions of this court over the years and it is worrying officers who are charged with the task of criminal investigations do not appear to get it right. As long ago as 1936, the predecessor of this Court emphasized that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in Police Force Standing Orders. See R v Mwango s/o Manaa (1936) 3 EACA There are a myriad other decisions on various aspects of identification parades since then and we need only cite for emphasis Njihia vs. R [1986] KLR 422 where the court stated at page 424: -

It is not difficult to arrange well-conducted parades. The orders are clear. If properly conducted, especially with an independent person present looking after the interests of a suspect, the resulting evidence is of great value. But if the parade is badly conducted and the complainant identifies a suspect the complainant will hardly be able to give reliable evidence of identification in court. Whether that is possible, depends upon clear evidence of identification apart from the parade. But of course if a suspect is only identified at an improperly conducted parade, it will be concluded by the witness that the man in the dock, is the person accused of the crime; and it will be difficult, if not impossible, for the witness to dissociate himself from his identification of the man on the parade, and reach back to his impression of the person who perpetrated the alleged crime.

14. The correct procedure of conducting an identification parade is provided for under chapter 42 paragraph 7 of the National Police Service Standing Orders. I will therefore endeavour to find whether the identification parades in respect of each witness adhered to the laid down procedure.

15. Rose Akinyi Odhiambo (PW3) in her evidence testified that she had not seen any of the assailants before. She however purported to identify the second accused. She said that he hit the deceased on the forehead with a hammer. She had not described to the police the person she could identify. Though the failure to describe a witness prior to the parade cannot be the sole reason for discarding such evidence, in the instant case the prevailing circumstances were not favourable for a positive identification. It is no wonder that this witness talked of the second accused being armed with a hammer while the other witnesses talked of spiked sticks, clubs and a wooden plank. Indeed Ruth Akeno Omondi (PW5) testified that accused 2 used a wooden plank to hit the deceased. No other witness talked of a hammer.

16. Ruth Akeno Omondi (PW5) equally did not testify as to what led her to identify the second accused at the parade. Her evidence differs with that of other witnesses as to what this accused was armed with.

17. The evidence of Juma Dennis Oluoch (PW14) is that he identified the second accused for he had a bandage. The parade had five members who had caps and that he removed the cap of the second accused. This parade did not adhere to the procedure. Chapter 42 paragraph 7 (5) (d) & (e) of the National Police Service Standing Orders provides:

(d) the accused or suspected person shall be placed among at least eight persons, as far as possible of similar age, height, general appearance and class of life as him or her;

(e) where the accused or suspected person is suffering from any disfigurement, steps shall be taken to ensure that it is not specially apparent;

18. Other than the flawed identification parades, the prosecution witnesses contradicted each other in material aspects. The Court of appeal in the case of Ndungu Kimanyi vs. Republic [1979] KLR 283, (Madan, Miller and Potter JJA) held:

The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates makes it unsafe to accept his evidence.

The prosecution witnesses have portrayed themselves as unreliable.

19. Kokonya Mukhusini Amukoya (accused 2) and Nick Saviour (accused 3) tendered an alibi defence. The court of appeal in the case of Kiarie vs. Republic [1984] KLR held:

An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.

In view of the contradictions in the evidence of the prosecution that I have pointed out, and in view of its insufficiency, I find that the alibi defenses raised by the accused persons are plausible.

20. The prosecution has failed to prove the offence of murder against any of the accused persons. I accordingly acquit each one of them and set him free unless if otherwise lawfully held.

DELIVERED and SIGNED at BUSIA this 27th day of January, 2021

KIARIE WAWERU KIARIE

JUDGE