[2003] KEHC 456 (KLR)
The court found that the identification of the appellant was unreliable due to insufficient lighting, lack of detail regarding the circumstances of identification, and absence of any stolen items recovered from the appellant. The court held that the prosecution failed to prove the case against the appellant beyond...
Source-derived case information.
- Citation
- [2003] KEHC 456 (KLR)
- Parties
- Appellant: Samwel Warui Wachira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1326 of 1997
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- 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
Samwel Warui Wachira
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the identification of the appellant as one of the robbers was reliable and sufficient to sustain a conviction.
- 2 Whether the prosecution proved its case against the appellant beyond reasonable doubt.
Ratio Decidendi
The court found that the identification of the appellant was unreliable due to insufficient lighting, lack of detail regarding the circumstances of identification, and absence of any stolen items recovered from the appellant. The court held that the prosecution failed to prove the case against the appellant beyond reasonable doubt, and that the conviction was unsafe. Consequently, the appeal was allowed, the conviction quashed, and the sentence set aside.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 1326 OF 1997
From original conviction and Sentence in Criminal Case No. 944 of 1996 of
the Resident Magistrate’s Court at Karatina
SAMWEL WARUI WACHIRA…………………………...….APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
J U D G M E N T
The appellant was convicted of the offence of Robbery with violence c/s 296(2) of The Penal Code and sentenced to death. Aggrieved by the said conviction he lodged this appeal. The appellant had been charged jointly with another person who however escaped form lawful custody and though convicted was not present when the judgment was delivered.
The complainants were forced into a neighbours house where they were robbed of personal effects as set out in the charge sheet and evidence in chief. The incident took place at night. Subsequently, the appellant and his co-accused were arrested and charged with this offence. They denied the same.
In this appeal we are only concerned with the case of the appellant. It was the prosecution case that he was among the people who robbed the complainants, pw1 and pw2. He was identified at the scene and at an identification parade held after his arrest.
The identification at the scene was allegedly based on the clothing that he wore, his voice and walking gait. As we have said, the offence took place at night. The only source of light in the house wherein he robbery took place was a lantern. From the evidence on record, there were a number of people in this house but the size of the room where they all stood was to given.
The size of the lantern was not given nor the intensity of the light that came there from. The time taken by the robbers therein was not specific and it is not easy to tell if the same was enough to afford the witnesses the opportunity to positively identify the appellant.
As to the evidence of gait as we have observed, there being several people in that house, it is not known how much distance the appellant had to walk and display his gait if any. In any case, no particular gait has been attributed to him in he entire record.
Further to the foregoing, in respect of noise identification there is no evidence that the identifying witness had known the appellant before, that he had conversed with him before that night to know his voice and that one word “soldier” was enough connect any suspect with such a serious crime.
Above, all, although some stolen items were recovered from the appellant’s co-accused, none were recovered form him.
Having gone through the evidence we are of the considered view that the conviction was most unsafe for reasons that we have given hereinabove.
There existed reasonable doubts which ought to have been given to the appellant.
Accordingly, we allow the appeal, quash the conviction and set aside the death sentence. The appellant shall be set free forthwith unless otherwise lawfully held.
Orders accordingly.
Dated and delivered at Nairobi this 29th day of July, 2003
MBOGHOLI MSAGHA
JUDGE
R M. MUTITU
JUDGE