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Court of AppealDismissedCriminal Appeal 83 of 1994

SALIM MACMASTERS ABDULLAH & ANOTHER v REPUBLIC [1995] KECA 33 (KLR)

Court of Appeal of Kenya
3 February 1995
JGJ. M. GachuhiROR. S. C. OmoloPhilip Kiptoo TunoiP. K. Tunoi
833 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that flawed identification-parade evidence must be ignored, yet upheld robbery convictions supported by other strong evidence.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Gachuhi, Omolo and Tunoi, JJ.A) heard the second appeals of Salim Macmasters Abdullah and Francis Ndungu Mwaura together. Both had been convicted by the Resident Magistrate at Gatundu on 1 September 1992 of robbery contrary to section 296(1) of the Penal Code, and the High Court (Oguk, J.) confirmed the convictions on 15 February 1994. On second appeal only matters of law arose. The single valid point of law was whether the identification parades were properly conducted. The court found that neither the magistrate nor the judge should have relied on the victim's testimony that he identified the appellants at parades, because the prosecution failed to call the parade officer or produce the parade forms - a concession the State made before the appellate court. That evidence was accordingly ignored. The court nonetheless held that abundant remaining evidence - the victim's observation of the appellants under electric light for several minutes before the attack, corroborated by the two drivers who testified the appellants hired their vehicle and drove them to the scene - rendered the convictions inevitable. The court refused to disturb the concurrent findings of the two courts below that the drivers were not accomplices, noting one reported the robbery to police and the other had chances to flee. The appeals against conviction and sentence failed in their entirety and were dismissed; no costs order was recorded in this criminal matter.

Key legal issues

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01

Identification parade evidence

Holding

Both courts below erred in relying on P.W.1's evidence of identification at parades where the parade conductor and parade forms were not produced; that evidence must be ignored.

Reasoning

It was the prosecution's duty to call the police officer who allegedly conducted the identification parades to testify and produce the parade forms. This was not done, and State Counsel conceded before the Court of Appeal that there was no acceptable evidence of any identification parades. Consequently the victims' testimony of parade identification could not stand and had to be ignored by the appellate court.

p. 1
02

Sufficiency of remaining evidence

Holding

Despite excising the parade-identification evidence, there was other abundant and corroborated evidence making the convictions inevitable.

Reasoning

P.W.1, the victim, had electric lights on during the robbery and had several minutes to observe the appellants, who bought and drank sodas before attacking him. His dock identification was corroborated by P.W.2 and P.W.3, who swore the appellants hired their vehicle and drove them to the scene, one being arrested near the scene and the other reporting the robbery to police.

p. 1
03

Accomplices and corroboration

Holding

P.W.2 and P.W.3 were not accomplices; their concurrent factual findings by the magistrate and the judge on first appeal could not be disturbed.

Reasoning

The magistrate found the appellants hired the vehicle for the purpose of collecting back the wife of the first appellant, not for robbery, and was satisfied the witnesses were not accomplices. The judge confirmed this, reasoning that a participant would not have reported the robbery to police or voluntarily stayed in the vehicle. Being concurrent findings of fact based on recorded evidence, the second appellate court could not interfere.

Legal principles established

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  • On a second appeal only matters of law fall for consideration by the Court of Appeal.
  • The prosecution must call the police officer who conducted an identification parade to produce the parade forms; absent that, evidence of identification at a parade must be ignored.
  • A Court of Appeal will not interfere with concurrent findings of fact by the two courts below.

Court orders

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  1. 1.The appeals are dismissed in toto
  2. 2.Convictions and sentences confirmed
On appeal from
High Court of Kenya at Nairobi
H.C.Cr.A. Nos. 1298, 1299 of 1994
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code, limited to matters of law

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, "SALIM MACMASTERS ABDULLAH & ANOTHER v REPUBLIC [1995] KECA 33 (KLR)", Case Analysis (1995). Criminal Appeal 83 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/33/eng@1995-02-03

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