[2006] KEHC 2297 (KLR)
The court found that the conditions at the scene of the robbery were not conducive to positive identification of the appellant. The robbers had covered their faces and used torches, which they shone on the witnesses, making it unclear how the witnesses could have identified the appellant. The court held that the...
Source-derived case information.
- Citation
- [2006] KEHC 2297 (KLR)
- Parties
- Appellant: Safari Ramadhan; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 174 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be set free unless otherwise lawfully held
- Legal Topics
- Robbery With Violence, Identification Evidence, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Safari Ramadhan
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was positively identified as one of the robbers during the commission of the offence.
- 2 Whether the conviction was based on sound and reliable evidence.
Ratio Decidendi
The court found that the conditions at the scene of the robbery were not conducive to positive identification of the appellant. The robbers had covered their faces and used torches, which they shone on the witnesses, making it unclear how the witnesses could have identified the appellant. The court held that the purported identification by PW 1 and PW 2 was unreliable and could not be the basis for a conviction on such serious charges. Consequently, the conviction was unsafe and could not be sustained.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be set free unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
Criminal Appeal 174 of 2004
SAFARI RAMADHAN………………......................................……………………APPELLANT
VERSUS
REPUBLIC……………................................…………………………………..RESPONDENT
JUDGMENT
The Appellant was upon trial on two counts for the offence of robbery with violence contrary to section 296 (2) of the Penal Code convicted and sentenced to death. He has appealed against both the conviction and sentence. When his appeal came up for hearing before us Mrs. Mwangi the Assistant Deputy Public Prosecutor conceded it on the ground that it is not founded on sound evidence.
Mrs. Mwangi said that the offences were committed at about 3. 00 a.m. The robbers who covered their faces had torches which they shone on the witnesses. Though PW 1 and PW 2 claimed to have identified the Appellant neither of them said at what stage and how they managed to see the Appellant if his face was covered. In the circumstances she was uncomfortable with the evidence of those witnesses founding a conviction on such serious charges.
We have ourselves perused the lower court record and are in entire agreement with Mrs. Mwangi that the conviction of the Appellant cannot be sustained. Other than the torches the robbers had there was no other source of light. The torches were shone on the witnesses. It is therefore not clear how in those circumstances PW 1 managed to single out the Appellant from a gang of more than 10 robbers and note the Appellant’s unique features particulars of which he did not give or how PW 2 managed to identify him.
We are satisfied that the conditions favourable for a positive identification were lacking and the purported identification of the Appellant by PW 1 and PW 2 cannot be relied upon. Consequently we allow this appeal quash the conviction and set aside the sentence. The Appellant is to be set free forthwith unless otherwise lawfully held.
DATED and delivered this 15th day of May 2006.
J. K. SERGON
JUDGE
D. K. MARAGA
JUDGE