[2005] KECA 78 (KLR)
The Court of Appeal found that the conviction of the appellant for robbery with violence was unsafe due to unreliable identification evidence and the implausibility of the prosecution's version of events. The complainant was unable to recognize any of his attackers, and it was highly unlikely that the robbers would...
Source-derived case information.
- Citation
- [2005] KECA 78 (KLR)
- Parties
- Appellant: Richard Micheni Kaburu; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 103 of 2005
- Procedural Posture
- Criminal Appeal / Appeal From Conviction and Sentence in the High Court
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless lawfully held for another cause
- Judges
- AM Githinji
- Legal Topics
- Robbery With Violence, Identification Evidence, Burden of Proof, Unsafe Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Micheni Kaburu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence in the High Court
Legal Issues
- 1 Whether the conviction of the appellant for robbery with violence was safe in light of the evidence presented.
- 2 Whether the identification of the appellant as one of the attackers was reliable.
- 3 Whether the appellant's version of events was more plausible than the prosecution's.
Ratio Decidendi
The Court of Appeal found that the conviction of the appellant for robbery with violence was unsafe due to unreliable identification evidence and the implausibility of the prosecution's version of events. The complainant was unable to recognize any of his attackers, and it was highly unlikely that the robbers would remain at the scene for two hours after the incident. The appellant's explanation for his presence at the scene was more credible, and the State conceded that his version was more plausible. The trial magistrate and the High Court failed to properly consider the appellant's defence. Consequently, the court quashed the conviction and set aside the sentence, ordering the...
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless lawfully held for another cause
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
23 paragraphs
REBUBLIC OF KENYA IN THE COURT OF APPEAL AT NYERI
(CORAM: OMOLO, GITHINJI & DEVERELL, JJ.A.)
CRIMINAL APPEAL 103 OF 2003
BETWEEN
RICHARD MICHENI KABURU ….…..………..……………………. APPELLANT
AND
REPUBLIC ………………………………………………….……. RESPONDENT
(Appeal from a judgment of the High Court of Kenya at Nyeri (Juma & Mitey JJ) dated 1st March, 2002 in H.C.CR.A. NO. 243 OF 1998) ********************
JUDGMENT OF THE COURT
We respectfully agree with Mr. Orinda, learned Principal State Counsel, when he says that the conviction of the appellant Richard Micheni Kaburu was unsafe, taking into account all the relevant circumstances of the case. The attack on Senior Sergeant Maurice Odhiambo Otieno, (PW1), if there was in fact an attack, took place at night at around 11. 30 p.m. When they attacked him, there was a fight and one of the attackers was seriously injured. PW1 managed to escape to the Air Force Base at Nanyuki, and in the company of Senior Sergeant Benard Were (PW3) and Senior Sergeant Ronald Obongo Onyango (PW4) they returned to the scene of the attack at about 1. 30 a.m. They alleged the attackers were still at the scene and the appellant was arrested together with the man who had been seriously injured and who appears to have succumbed to his injuries. As was rightly pointed out to us by both Mr. Orinda and Mr. Mburu, the learned counsel for the appellant, it was very unlikely that the robbers would continue to be at the scene of the crime long after that so that they would be found 2 hours later by the victim of the attack.
The story given by the appellant as to why he happened to be at the scene was more likely to be true than the one put forward by the prosecution witnesses. According to the appellant, he found two men fighting over a woman and he was asked to intervene and separate the two men. He intervened, with the result that he himself was injured. PW1 had not been able to recognize any of the people who had attacked him and we think it was not right for the High Court Judges to dismiss the appellant’s version of the story despite the concession by the State that the appellant’s version of events looked more plausible than the version put forward by the prosecution. The learned trial magistrate dismissed the appellant’s story in a judgment of just two typed pages. The learned Judges of the High Court did no better in the appellant’s appeal to them. We agree that the appellant’s conviction on the charge of robbery with violence undersection 296 (2) of the Penal Code was unsafe and we accordingly allow the appeal, quash the conviction and set aside the sentence of death imposed on the appellant. We order that the appellant shall be released from prison forthwith unless he is held for some other lawful cause.
Dated and delivered at Nyeri this 31st day of October, 2005.
R. S. C. OMOLO
…………………………….
JUDGE OF APPEAL
E. M. GITHINJI
…………………………….
JUDGE OF APPEAL
W. S. DEVERELL
…………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR