[2009] KEHC 492 (KLR)
The court found that the identification evidence relied upon by the trial court was fundamentally flawed. The witnesses had not previously seen the appellants, gave no descriptions to the police, and no identification parade was conducted. The only identification was dock identification, which the court held is not...
Source-derived case information.
- Citation
- [2009] KEHC 492 (KLR)
- Parties
- Appellant: Simon Ngugi Njoroge; Appellant: Samuel Matheri Josephine; Appellant: Peter Muturi Njoroge; Appellant: John Ndungu Mathenge; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 262, 263, 264, 267 & 272 of 2006
- Procedural Posture
- Criminal Application / Appeal Judgment
- Outcome
- convictions quashed, sentences set aside, appellants to be released unless otherwise lawfully held
- Legal Topics
- Robbery With Violence, Identification Evidence, Appeal Against Conviction, Dock Identification, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Ngugi Njoroge
Appellant
Samuel Matheri Josephine
Appellant
Peter Muturi Njoroge
Appellant
John Ndungu Mathenge
Appellant
Republic
Respondent
Procedural Posture
Criminal Application / Appeal Judgment
Legal Issues
- 1 Whether the identification of the appellants by the prosecution witnesses was reliable and sufficient to sustain a conviction.
- 2 Whether the convictions and sentences imposed by the trial court were supported by evidence.
Ratio Decidendi
The court found that the identification evidence relied upon by the trial court was fundamentally flawed. The witnesses had not previously seen the appellants, gave no descriptions to the police, and no identification parade was conducted. The only identification was dock identification, which the court held is not reliable or sufficient to sustain a conviction. Both the prosecution and defence agreed that the trial court misdirected itself in accepting this evidence. As there was no credible evidence linking the appellants to the offences, the convictions were unsafe and could not stand. The court therefore quashed the convictions and set aside the sentences.
Court Disposition
convictions quashed, sentences set aside, appellants to be released unless otherwise lawfully held
Orders
- The convictions of the appellants are quashed.
- The sentences against the appellants are set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAKURU
Criminal Application 262, 263, 264, 267 & 272 of 2006
SIMON NGUGI NJOROGE…………...…….1ST APPELLANT
SAMUEL MATHERI JOSEPHINE.…..……2ND APPELLANT
PETER MUTURI NJOROGE……………….3RD APPELLANT
JOHN NDUNGU MATHENGE…………......4TH APPELLANT
VERSUS
REPUBLIC…………………………….........…..RESPONDENT
(From original conviction and sentence in Criminal Case No.912 of 2005 of the Chief Magistrate’s court at Nakuru – M. W. ONDITI, SRM)
JUDGMENT OF THE COURT
SIMON NGUGI NJOROGE, SAMUEL MATHERI NJOROGE, PETER MUTURI NJOROGEandJOHN NDUNGU MATHENGE, the appellants in these appeals were upon trial on a charge of robbery with violence contrary to Section 296(2) and assault causing actual bodily harm contrary to Section 251 of the Penal Code convicted on both counts and sentenced to death on the first count and three years imprisonment on the second count. The trial magistrate ordered “Both sentences to run consecutively”. They have appealed against both those convictions and sentences.
The two star witnesses, PW1 and PW2, both confessed that they had not seen any of the appellants prior to the robbery. They claimed to have recognized them at the time of robbery but they did not give any description of any of the appellants to the police or say what made them recognize the appellants. The police never held an identification parade and only showed the appellants to the witnesses at the police station and in court the two witnesses purported to identify the appellants. That is dock identification which is no identification at all. We therefore agree with both the state and accused’s counsel that the trial court’s finding that the two witnesses recognized the appellants was a grave misdirection. There was absolutely no evidence to support the conviction of the appellants on either of the two charges. Consequently we quash the convictions of the appellants and set aside the sentences against them. The appellant shall be set free forthwith unless otherwise lawfully held.
DATED and delivered this 19th day of November, 2009.
D. K. MARAGA
JUDGE.
M. G. MUGO
JUDGE.