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Court of AppealDismissedCriminal Appeal No. 7 of 2001

Ayub Kariuki Wamae & 5 others v Republic [2001] KECA 219 (KLR)

Court of Appeal of Kenya
21 December 2001
2,071 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld death sentences for a deadly 1993 robbery, ruling a widow's torchlight identification of the attackers was reliable.

What this practically means

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Executive summary

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The Court of Appeal (Gicheru, Owuor and Keiwua, JJ.A.) dismissed the second appeal of five appellants who had been convicted of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death. The 1st appellant died before the hearing and his appeal abated under rule 68(1)(a) of the Court of Appeal Rules. The convictions arose from a gang robbery at about 3.00 a.m. on 23rd November 1993 at the house of the late Justus Kirunja, who was fatally wounded; money, a radio cassette, novels, a hat and a Seiko quartz watch were stolen. The prosecution case rested principally on the visual identification evidence of P.W.1, the deceased's widow, who said torch light enabled her to identify the robbers and who later picked out the appellants at identification parades at Meru Police Station, and on the repudiated inquiry statements under caution of the 3rd and 6th appellants, admitted after a trial within a trial. Their consolidated first appeals were dismissed by the High Court at Meru (Etyang' and Juma, JJ.) on 27th November 1998. On second appeal the appellants' chief complaint was the insufficiency of the visual identification evidence and the reliance on the repudiated statements. The Court reaffirmed that a conviction predicated on eyewitness identification requires evidence conclusively showing that the conditions favouring correct identification were satisfactory; held the torch light sufficient, since it enabled P.W.1 to see the weapons and the money emptied from her hand bag, absent any evidence of disguise; found no demonstrable breach of the identification parade instructions in Chapter 46 of the Kenya Police Force Standing Orders; and held that the identification evidence corroborated the repudiated statements. The appeal was dismissed.

Questions the Court framed

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

  1. 1.Whether the visual identification evidence of P.W.1 was sufficient to sustain the convictions, that is, whether the conditions favouring correct identification were satisfactory.
  2. 2.Whether the identification parades conducted at Meru Police Station were properly conducted in accordance with the applicable instructions.
  3. 3.Whether the repudiated inquiry statements under caution of the 3rd and 6th appellants, admitted after a trial within a trial, could be relied upon to found the convictions.

Key legal issues

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01

Sufficiency of visual identification by torch light at night

Holding

The conditions favouring correct identification were satisfactory; the torch light was sufficient for P.W.1 to identify the appellants.

Reasoning

P.W.1 was forced from her hiding place and, by the light of torches flashed around the house including the ceiling, saw that the robbers were armed with pangas, axes and simis and saw the money emptied from her hand bag onto the floor. She identified the appellants at identification parades held on 16th February and 16th March 1994. There was no evidence of any attempt to disguise their identity, and the wanton flashing of the torches manifested the robbers' reckless audacity.

p. 3
02

Reliance on repudiated inquiry statements under caution

Holding

The repudiated inquiry statements required corroboration, and P.W.1's visual identification evidence supplied that corroboration.

Reasoning

The 3rd and 6th appellants' inquiry statements under caution were repudiated and admitted only after a trial within a trial, so they required corroboration before reliance. The 3rd appellant's statement implicated all the appellants in the robbery, while the 6th appellant's statement implicated himself and the 3rd appellant. The Court found that P.W.1's visual identification, which it held satisfactory, furnished the necessary corroboration connecting the statements to the offence and rendering the convictions safe despite the repudiation.

p. 3
03

Propriety of the identification parades

Holding

The parades complied with the Kenya Police Force Standing Orders and there was no demonstrable breach of the instructions.

Reasoning

The Court stated that identification parades must be held according to the instructions in Order 6(iv), (v) and (vi) of Chapter 46 of the Kenya Police Force Standing Orders. The parades were conducted at Meru Police Station by I.P. Wilmot Mwakio and I.P. Simon Ondego on 16th February and 16th March 1994, and the Court found no demonstrable breach of those instructions, so the identifications made at the parades stood as reliable evidence supporting the convictions.

p. 3
04

Effect of the witness's terror and shock on the reliability of her identification

Holding

The witness's fright and shock occurred after she had had full opportunity to see and identify the appellants and had no bearing on the correctness of her identification.

Reasoning

P.W.1 was threatened and her skirt was ripped off with a simi, leaving her naked, and she defecated and urinated on herself. The Court held that this occurred only after she had had full opportunity to see and identify the appellants, so her subsequent condition did not undermine her identification. The passage is useful where counsel invites an appellate court to discount identification made by a terrified witness.

p. 3

Legal principles established

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  • A conviction predicated on eyewitness identification must rest on evidence that conclusively shows the conditions favouring correct identification were satisfactory.
  • A repudiated inquiry statement under caution admitted in evidence after a trial within a trial requires corroboration before it can be relied upon.
  • Identification parades must be conducted in accordance with Order 6(iv), (v) and (vi) of Chapter 46 of the Kenya Police Force Standing Orders.
  • Light sufficient for a witness to see the robbers' weapons and the stolen money cannot selectively be held insufficient for identification of the robbers where there is no evidence of any attempt to disguise their identity.

Court orders

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  1. 1.The appeal of the 1st appellant (Ayub Kariuki Wamae), who died before the hearing, abated under rule 68(1)(a) of the Court of Appeal Rules.
  2. 2.The appeal of the 2nd, 3rd, 4th, 5th and 6th appellants dismissed; the convictions and death sentences imposed by the trial court and upheld on first appeal therefore stand.

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 Meru
H.CR. Appeals No. 203, 202, 206, 205, 201 & 204 of 1996
Jurisdiction invoked
Not expressly invoked in the judgment; the matter is a second criminal appeal to the Court of Appeal, the only provision cited being rule 68(1)(a) of the Court of Appeal Rules on abatement of a deceased appellant's appeal.
Consolidated with
H.CR. Appeal No. 203 of 1996, H.CR. Appeal No. 202 of 1996, H.CR. Appeal No. 206 of 1996, H.CR. Appeal No. 205 of 1996, H.CR. Appeal No. 201 of 1996, H.CR. Appeal No. 204 of 1996

Relief refused

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Allowance of the appeal, quashing of the convictions and setting aside of the death sentences

The Court found the conditions favouring correct identification satisfactory, found no breach of the identification parade instructions, and held that the visual identification evidence corroborated the repudiated inquiry statements, leaving no merit in the appeal.

p. 3

Costs

No costs order was made; the judgment is silent on costs.

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.

There is therefore no merit in the appellants' appeal and the same is dismissed.
p. 3Disposition - second appeal dismissed
Where the conviction of an accused person is predicated on the eyewitness identification, evidence in that regard must conclusively show that the conditions favouring his correct identification were satisfactory.
p. 3Eyewitness identification - conditions must be shown satisfactory
They therefore required corroboration in order to be relied on.
p. 1Corroboration of repudiated inquiry statements admitted after a trial within a trial
an identification parade should be held according to the instructions in Order 6.(iv), (v) and (vi) of Chapter 46 of the Kenya Police Force Standing Orders
p. 3Identification parade procedure
If that light was sufficient for P.W.1 to see what weapons the robbers were armed with and the money emptied from her hand bag onto the floor of the house, it cannot selectively be said to have been insufficient for her identification of the appellants in the absence of any evidence of their attempts to disguise their identity.
p. 3Sufficiency of torch-light identification absent evidence of disguise
This subsequent state of her condition had no bearing on her correct identification of the appellants.
p. 3Effect of witness shock on identification
The 1st appellant died before the hearing of this appeal. Hence, his appeal to this Court abated under rule 68(1)(a) of the Court of Appeal Rules.
p. 1Abatement of a deceased appellant's appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ayub Kariuki Wamae & 5 others v Republic [2001] KECA 219 (KLR)", Case Analysis (2001). Criminal Appeal No. 7 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/219/eng@2001-12-21

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