[2010] KEHC 2414 (KLR)
The High Court found that the identification of the appellants was not positive. The complainant's identification was based on unreliable torchlight and voice recognition, which did not meet the threshold for positive identification. The trial court failed to warn itself of the dangers of relying on a single...
Source-derived case information.
- Citation
- [2010] KEHC 2414 (KLR)
- Parties
- Appellant: Wafula Juma Wanjala; Appellant: Richard Wanjala Wafula; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 62 &63; of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellants set at liberty
- Judges
- FN Muchemi
- Legal Topics
- Robbery With Violence, Identification Evidence, Single Witness Testimony, Standard of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Wafula Juma Wanjala
Appellant
Richard Wanjala Wafula
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellants were positively identified as the perpetrators of the robbery with violence.
- 2 Whether the trial court erred in relying on the evidence of a single identifying witness without proper caution.
- 3 Whether the failure to conduct a voire dire test on PW2 rendered the evidence inadmissible.
Ratio Decidendi
The High Court found that the identification of the appellants was not positive. The complainant's identification was based on unreliable torchlight and voice recognition, which did not meet the threshold for positive identification. The trial court failed to warn itself of the dangers of relying on a single identifying witness and did not adequately address the credibility of the complainant or contradictions in the evidence. There was no evidence that the appellants were armed, and the prosecution failed to prove the case beyond reasonable doubt. Consequently, the conviction was unsafe and could not be sustained.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellants set at liberty
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Criminal Appeal 62 &63 of 2009
(Appeal arising from WBY SRM Cr. No.142 of 2008)
WAFULA JUMA WANJALA::::::::::::::::::1ST APPELLANT
RICHARD WANJALA WAFULA::::::::::::::::::2ND APPELLANT
~VRS~
REPUBLIC::::::::::::::::::::::::RESPONDENT
JUDGMENT
The Appellants Wafula Juma Wanjala and Richard Wanjala Wafula were convicted by Webuye SRM for the offence of robbery with violence contrary to section 296 (2) of the Penal Code and sentenced to suffer death in the manner authorized by the law.Both appealed to this court against the conviction.
In their petition of appeal filed by their advocates J. O. Makali & Company dated 04/06/09, they cite four grounds of appeal as follows:
a)That the Appellants were not positively identified.
b)That court relied on the evidence of a single witness and failed to warn itselfof the danger of such evidence.
c)The evidence of PW2 was taken without conducting the “voire dire” test.
d)That the defence of the Appellants was disregarded.
Mr. Ogoti, Senior Principal State Counsel conceded to the appeal on grounds that identification of the Appellants by the complainant was not positive.She said she saw the robbers with light from their own torches and through voice identification.The complainant had heard the Appellants talk elsewhere but not at the scene of crime.The state counsel was convinced that the finding of the magistrate in convicting the Appellants was wrong.
The facts of the case is that the complainant (PW1) was at home with her children on the material night.She was woken up by a loud bang and then saw flashing of torches inside her house.She identified the Appellants who are her brother-in-laws.The assailants robbed her of cash Ksh.105,000/= which cash was proceeds of sale of land.The two men were present when PW1 received the cash about three (3) days before the incident.The light from the torches of the attackers is what aided her to identify the Appellants.This is very unreliable kind of light in that the attackers will normally flash at their victims and not at themselves.As for the voice identification, it relates to the 2nd Appellant and not the first.It happened in the house of one Kinusu who is PW1’s brother-in-law where the 2nd Appellant was overheard saying that “that woman has a lot of money.”The identity of the woman was not disclosed in the conversation.The recovery of items produced as exhibits was from the house of other suspects who were not charged in court.
PW1 gave the names of Juma Simiyu and Richard to the police officer who testified as PW3. The names of the Appellants are Wafula Juma Wanjala and Richard Wanjala Wafula. Both were arrested in their houses andno recovery was made.In their defence the Appellants denied committing the offences and said that PW1 was framing the case against them.They said that they had informed the police of the frame-up.
In her judgment, the magistrate failed to addressthe issue of credibility of the complainant and the contradictions in the evidence.The conditions were not conducive for positive identification.It is doubtful that the complainant saw the Appellants in her house.The court failed to warn itselfon the danger of relying on a single identifying witness.A witness may be honest in her testimony but mistaken.It was the duty of the court to satisfy itselfthat identification was positive.
The complainant did not say that the attackers were armed until during cross-examination.As for the Appellants, there is no evidence that they were armed, even assuming that identification had been established.
It is our finding that the magistrate erred both in law and fact in convicting the Appellants.The case had not been proved to the standards required.We entirely agree with the state counsel on his observation.
The appeal must therefore succeed.We allow the appeal, quash theconviction and set aside the sentence.The Appellants are set at liberty unless otherwise lawfully held.
D. A. ONYANCHA
JUDGE
F. N. MUCHEMI?
JUDGE
Judgment dated and delivered on the 16th day of June, 2010.
In the presence of the Appellants, Mr. Luchivia for Mr. Makali for the Appellants and the State Counsel Mrs. Leting.
F. N. MUCHEMI
JUDGE