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Court of AppealDismissedCriminal Appeal No. 39 of 1999

William Nyangusi Kithuku v Republic [1999] KECA 74 (KLR)

Court of Appeal
30 July 1999
1,064 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a suspect chased and kept in continuous sight can be positively identified, even when a victim's identification fails.

What this practically means

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Executive summary

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The appellant was convicted by the Senior Resident Magistrate's Court at Mombasa of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death, the charge arising from a robbery at Cecilia Levi's shop in Kisauni on 10th November 1996 in which a pick-up, cash and liquor were stolen. His first appeal to the High Court (Hayanga & Waki JJ) was dismissed on 6th November 1998, the learned Judges being satisfied that he was positively identified. On second appeal, the appellant's sole complaint, urged by Mr G.S. Ngombo, was that he was not positively identified as one of the robbers. The Court of Appeal agreed with the courts below that no reliance could be placed on Cecilia's identification-parade evidence, since two armed gangsters had threatened to shoot her, making reliable identification impossible. However, the court found the evidence of the two KK Guards, Kituyi and Adala, who chased the appellant from the point he jumped out of the stolen pick-up, kept him in continuous sight over some 300 yards and apprehended him, to be watertight. Adala had also earlier seen him entering the vehicle. The court was satisfied that the appellant was positively identified as one of the robbers, rejected the submission that the identification was not free from error, and dismissed the appeal, thereby affirming the conviction and sentence. The judgment is a single judgment of the whole court delivered at Mombasa on 30th July 1999.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant was positively identified as one of the robbers who raided Cecilia Levi's shop on 10th November 1996

Key legal issues

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01

Whether the appellant was positively identified as one of the robbers

Holding

The appeal fails because the evidence of the two KK Guards who chased and apprehended the appellant, keeping him in sight throughout, established positive identification notwithstanding the rejection of the complainant's identification-parade evidence.

Reasoning

The court noted that Cecilia's identification at the parade could not be relied upon because two armed gangsters threatened to shoot her, making reliable identification impossible. However, Kituyi and Adala chased the appellant from the point he jumped out of the pick-up, kept him in sight continuously over some 300 yards, and arrested him. Adala had also earlier seen him entering the vehicle. The court found this evidence watertight and affirmed the concurrent findings of the magistrate and the High Court.

p. 2

Legal principles established

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  • On a second appeal, the Court of Appeal will not interfere with concurrent findings of fact by the two courts below unless satisfied that the identification was not free from error; evidence of continuous pursuit keeping the accused in sight can amount to positive identification.

Court orders

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  1. 1.Appeal dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Mombasa
H.C.CR.A. No. 129 of 1997
Jurisdiction invoked
Second appellate jurisdiction over a criminal appeal from the High Court exercising first appellate jurisdiction

Relief refused

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Allowance of the appeal against conviction and sentence

The court was satisfied that the evidence of the pursuing guards established positive identification of the appellant as one of the robbers

p. 2

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

having regard to the fact that there were two armed gangsters, each threatening to shoot her, one cannot say, with absolute certainty, that in those circumstances she was able to identify the appellant properly
p. 2Reliability of identification under threat of violence
This evidence is watertight and we are accordingly satisfied that the appellant was positively identified as one of the robbers, and we reject Mr Ngombo's submission that the appellant's identification was not free from error. Accordingly this appeal fails and it is dismissed.
p. 2Final orders - dismissal of appeal on positive identification by continuous pursuit

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, "William Nyangusi Kithuku v Republic [1999] KECA 74 (KLR)", Case Analysis (1999). Criminal Appeal No. 39 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/74/eng@1999-07-30

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