Peter Gikonyo Nyoike & 2 others v Republic [2005] KECA 125 (KLR)

Counsel catalogued contradictions in the vehicle registration number, the identity of the accused who removed the money, and the time of the robbery. The Court accepted, citing Okeno v Republic, that the first appellate court has a legal duty to reconsider the evidence and draw its own conclusions, but held the points taken were minor and irrelevant to the central question whether the appellants robbed and were positively identified by the complainants. It had not been shown that the inconsistencies rendered the prosecution case wholly incredible.

The recovered goods (a bag, two shirts, two long trousers, a towel, a torch and a cassette) did not match the charge particulars, and the recovered shirts were not positively identified as belonging to the first complainant. Recovery of goods not listed in the charge sheet was immaterial, and that evidence should have been discounted. Its rejection did not affect the convictions, which rested on identification evidence, together with, for the first appellant, evidence of leading police to discoveries and a corroborated repudiated confession.

Counsel criticised the forms for not recording whether the investigating officer and a solicitor were present and for not using the appellants' actual words. The Court held these lapses did not affect the quality of the identification evidence. The officer who conducted the parades gave detailed evidence of compliance with the Force Standing Orders, the members were picked from police cells and the second appellant was allowed to choose them, and the two courts below had reached concurrent findings that the parades were not flawed.

The Court adopted the Kiarie v Republic standard that identification evidence relied on solely must be absolutely watertight. This was not a single-witness night identification: each appellant was identified by two complainants in daylight and again at parades. The evidence that the first appellant led police to discoveries was admissible under section 31 of the Evidence Act as it then stood, and his repudiated confession was sufficiently corroborated. The superior court erred in attributing an extra-judicial statement to the third appellant, but his identification was nonetheless free from possibility of error.

It was the second appellant himself who applied for production of the O.B., which showed the second complainant had not described the robbers; the appellants used that entry in their defences, and the record did not show the O.B. was produced in their absence. An irregularity could only have arisen had the entire evidence of the officer who recorded the second appellant's statement been received before the ruling; the parade evidence did not offend against procedure.

All three appellants had been sentenced to death on each of the two counts of robbery contrary to section 296(2) of the Penal Code. The Court held that the correct course was to impose death on one count only, leaving the second count's sentence in abeyance. It accordingly dismissed the appeals against conviction, confirmed that the appellants shall suffer death in the first count, and expressly set aside the sentences of death imposed on the second count.