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Court of AppealAllowedCriminal Appeal (number not stated in judgment)

Samwel Mwaura Njihia v Republic [1987] KECA 46 (KLR)

Court of Appeal of Kenya
25 February 1987
NYNyarangiPLPlattGAGachuhi
223 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a robbery conviction because the accused was barred from his appeal hearing and the identification parade was flawed.

What this practically means

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Executive summary

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The Court of Appeal (Nyarangi, Platt and Gachuhi JJJA) allowed a criminal appeal against conviction for robbery with violence under section 296(2) of the Penal Code as it stood before amendment to carry the death sentence. The appellant had been sentenced to 16 years imprisonment and 18 strokes of corporal punishment, with the High Court directing 10 years to run concurrently with punishment for another offence. Two defects, both already settled by prior judgments of the court, were raised. First, state counsel (Mr Etyang) conceded that, like his co-accused in Joel Kamitha John v Rep (Criminal Appeal Nos 164 and 172 of 1984), the appellant was denied his right to attend the hearing of his appeal and put forward his case. Secondly, the identification parade was not properly conducted, lacking a reasonable margin of choice to avoid identification by chance; in Samuel Mwaura Njihia v Rep (Criminal Appeal No 13 of 1986), which involved this very appellant, a similar parade had already been declared invalid. The court held that both appeals had to be answered in the same way: the identification could not be relied upon. The court allowed the appeal, quashed the conviction, set aside the sentences, and ordered that, unless otherwise lawfully held, the appellant be set at liberty. The judgment establishes binding appellate authority that denial of an appellant's attendance at the appeal hearing and a defective identification parade each vitiate a conviction. No costs order was made.

Key legal issues

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01

Denial of the right to attend the hearing of the appeal

Holding

The appellant, like his co-accused in Joel Kamitha John v Rep, was denied his right to attend the hearing of the appeal and put forward his case, which required the appeal to be answered in his favour.

Reasoning

The court noted that this issue was already covered by previous judgments of the court. Counsel for the State fairly conceded the point and referred the court to the co-accused's appeal. Following that precedent, the court found the same defect had occurred here and that the appeals had to be answered in the same way.

p. 2
02

Validity of the identification parade

Holding

The identification parade was not properly carried out, lacking a reasonable margin of choice to avoid identification by chance, following Samuel Mwaura Njihia v Rep, and the identification could not be relied upon.

Reasoning

The court observed that in Samuel Mwaura Njihia v Rep (Criminal Appeal No 13 of 1986), which involved this very appellant, a similar parade had already been declared invalid. Applying that authority, the court held the parade here was equally flawed and that consequently the identification evidence could not be relied upon to sustain the conviction.

p. 2

Legal principles established

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  • An accused person must be given the right to attend the hearing of his appeal and put forward his case.
  • An identification parade must be conducted with a reasonable margin of choice to avoid identification by chance; a parade conducted otherwise is invalid and identification evidence from it cannot be relied upon.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The conviction of the appellant is quashed
  3. 3.The sentences are set aside
  4. 4.Unless otherwise lawfully held, the appellant is to be set at liberty
On appeal from
High Court
Jurisdiction invoked
First appellate/criminal appeal jurisdiction under the Penal Code and appellate procedure (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samwel Mwaura Njihia v Republic [1987] KECA 46 (KLR)", Case Analysis (1987). Criminal Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/46/eng@1987-02-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.