[2013] KEHC 5640 (KLR)

[2013] KEHC 5640 (KLR)

The court found that the identification evidence against both appellants was not sufficiently interrogated and, standing alone, could not form the basis of a safe conviction. However, in the case of the 2nd appellant, additional incriminating evidence was present: he was found in possession of a recently stolen cell...

Source-derived case information.

Citation
[2013] KEHC 5640 (KLR)
Parties
Appellant: Terry Goreti Wasike; Appellant: Francis Simiyu alias Alim Yusuf; Respondent: Republic
Court
High Court
Court Station
High Court at Bungoma
Jurisdiction
Kenya
Judgment Date
23 May 2013
Case Number
Criminal Appeal 86 & 87 of 2009
Procedural Posture
Criminal Appeal / Judgment on Appeal From Conviction and Sentence
Outcome
Appeal allowed in part; conviction and sentence of 1st appellant quashed and set aside; conviction and sentence of 2nd appellant upheld with clarification on sentence.
Legal Topics
Robbery With Violence, Identification Evidence, Children in Conflict With Law, Right to Legal Assistance, Sentencing Principles, Appeals Process
Source Language
english
Criminal Law Robbery With Violence Identification Evidence Children in Conflict With Law Right to Legal Assistance Sentencing Principles Appeals Process

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Summary, issues, holding and outcome

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Parties

Terry Goreti Wasike

Appellant

Francis Simiyu alias Alim Yusuf

Appellant

Republic

Respondent

Procedural Posture

Criminal Appeal / Judgment on Appeal From Conviction and Sentence

Legal Issues

  1. 1 Whether the identification evidence against the appellants was sufficient to sustain a conviction.
  2. 2 Whether the trial court erred in law and fact in convicting and sentencing the appellants, particularly in light of the age of the 1st appellant.
  3. 3 Whether the trial court properly considered the defence of alibi raised by the appellants.

Ratio Decidendi

The court found that the identification evidence against both appellants was not sufficiently interrogated and, standing alone, could not form the basis of a safe conviction. However, in the case of the 2nd appellant, additional incriminating evidence was present: he was found in possession of a recently stolen cell phone belonging to the complainant within 24 hours of the robbery, and was apprehended near the location where the stolen vehicle was recovered, carrying petrol. This, combined with the identification evidence, outweighed his unsubstantiated alibi. In contrast, the 1st appellant's conviction was unsafe as it rested solely on weak identification evidence and untested testimony...

Court Disposition

Appeal allowed in part; conviction and sentence of 1st appellant quashed and set aside; conviction and sentence of 2nd appellant upheld with clarification on sentence.

Orders

  • Conviction and sentence of Terry Goreti Wasike (1st appellant) quashed; she is set at liberty unless otherwise lawfully held.
  • Conviction of Francis Simiyu alias Alim Yusuf (2nd appellant) upheld; death sentence to apply to count one only; sentence on count two held in abeyance.