[2008] KECA 117 (KLR)
The Court of Appeal found that the identification evidence against the appellant was unreliable, as the witnesses were not in a position to properly see and recognize him. Furthermore, the record did not clearly establish how the appellant was arrested. The court also noted serious procedural irregularities,...
Source-derived case information.
- Citation
- [2008] KECA 117 (KLR)
- Parties
- Appellant: Wycliffe Kisanya Lusigi; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 64 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless lawfully held for another cause
- Judges
- AM Githinji, JA Aluoch
- Legal Topics
- Robbery With Violence, Identification Evidence, Criminal Procedure Irregularities
- 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
Wycliffe Kisanya Lusigi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly identified as the perpetrator of the robbery with violence.
- 2 Whether the trial process was vitiated by procedural irregularities, including failure to take a plea and excessive adjournments.
Ratio Decidendi
The Court of Appeal found that the identification evidence against the appellant was unreliable, as the witnesses were not in a position to properly see and recognize him. Furthermore, the record did not clearly establish how the appellant was arrested. The court also noted serious procedural irregularities, including the failure to take a plea and the excessive, unjustified adjournments granted during the trial. These defects undermined the integrity of the conviction. Consequently, the court allowed the appeal, quashed the conviction, set aside the sentence of death, and ordered the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless lawfully held for another cause
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL OF KENYA
AT ELDORET
CRIMINAL APPEAL 64 OF 2005
WYCLIFFE KISANYA LUSIGI ………………………… APPELLANT
AND
REPUBLIC ……………………………………………… RESPONDENT
Appeal from a judgment of the High Court of Kenya at Eldoret (J. Gacheche & G. Dulu, JJ) dated 31st January, 2005
in
H.C.CR.A. NO. 10 OF 2004)
*****************
JUDGMENT OF THE COURT
Between 26th April, 1999 and 13th February 2004, Wycliffe Kisanya Rusigi,the appellant herein, was tried, convicted and sentenced to death on a charge of robbery with violence contrary to section 296(2) of the Penal Code. The particulars contained in that charge were that on 24th day of April, 1999 along Nandi/Hills Lessos Road near Chepkuny Secondary School in Nandi District within Rift Valley Province, while armed with dangerous or offensive weapons, namely rungus, and jointly with another not before court, the appellant robbed Wilson Kiplagat Lelei of his bicycle, five loaves of bread, one dozen cigarettes and Kshs. 200/= cash, all to the total value of Kshs. 6,800/= and at the time of the robbery the appellant wounded Wilson Kiplagat Lelei. The appellant first appeared in court before the then Mrs. Wanjiru Karanja, a Principal Magistrate (now a Judge of the High court). The magistrate recorded on that day that permission to prosecute the appellant had not been received and, therefore, no plea could be taken and none was taken from the appellant. Throughout the prolonged proceedings no plea was ever taken from the appellant. As a matter of law, no permission is required, from the Attorney General, to prosecute a person charged under section 296(2) of the Penal Code.
From 26th April, 1999 when the appellant first appeared in court to the 13th February, 2004 when he was sentenced to death only five witnesses testified. So the prosecution needed nearly five years to bring before the court five witnesses to testify in their case. Over half of the record is taken up by applications for adjournment, applications which the appellant objected to many times over, but which Mr. F. A. Mabele who tried him routinely granted. It is simply scandalous and trial courts must now desist from routinely granting such uncalled for adjournments.
On the merits of the appeal itself, Mr. Omutelema the learned Senior Principal State Counsel, readily conceded the appeal on the grounds that the relevant witnesses were not in a position to properly see and recognise the appellant. He also conceded that it was not quite clear from the record how the appellant came to be arrested. We entirely agree with Mr. Omutelema and that being the view we take of the matter, we allow the appeal, quash the conviction, set aside the sentence of death and order that the appellant be released from prison forthwith unless held for some other lawful cause.
Dated and delivered at Eldoret this 26th day of September, 2008.
R.S.C. OMOLO
………………………..
JUDGE OF APPEAL
E. M. GITHINJI
………………………..
JUDGE OF APPEAL
J. ALUOCH
………………………..
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
DEPUTY REGISTRAR