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Court of AppealPartially AllowedCriminal Appeal 7, 8 and 9 of 1999· [2005] KECA 304 (KLR)

David Njeru Kibuthu & others v Republic [2005] KECA 304 (KLR)

Court of Appeal
20 May 2005
2,515 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 quashed a robbery conviction because tracker dog evidence lacked proof of the dog's training, but upheld convictions based on fingerprints at the scene.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Nyeri against the judgment of the High Court of Kenya at Nyeri (Mwera and Juma JJ) of 26 November 1998, which upheld the convictions of the three appellants for robbery with violence by the Principal Magistrate's Court at Embu in Criminal Case No. 49 of 1994. The charge arose from a robbery at the Kangaru village home of Dr Mohammed Mushtaq in the early hours of 1 January 1994, in which the complainant, his wife, his watchman and his shamba boy were injured and cash, watches, jewellery and a blood pressure machine stolen. The prosecution case rested on two strands: tracker dog evidence, in which the dog 'Omas' allegedly tracked and led officers to each appellant, and fingerprint evidence against the second and third appellants. The court held that a conviction cannot safely rest on tracker dog evidence without proof of the dog's training and experience and expert evidence on a tracker dog's ability to distinguish the scents of several people at a scene; the record contained no such evidence and the handler never claimed the dog was trained. The first appellant was identified by no witness, no stolen property was traced to him and his fingerprints were not found at the house, so his guilt was not proved beyond reasonable doubt, a conclusion fortified by the State's failure to support his conviction. His appeal was allowed, his conviction quashed, the death sentence set aside and his immediate release ordered. The fingerprints lifted from inside the house matched the second and third appellants, with no evidence that either had ever been in or near the house before, establishing participation in the robbery; their appeals were dismissed. No costs order was made and no authorities or statutes were cited.

Key legal issues

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01

Reliability and sufficiency of tracker dog evidence

Holding

A conviction cannot safely rest on tracker dog evidence where there is no evidence of the dog's training and experience and no expert evidence as to a tracker dog's ability to distinguish between the scents of several persons at a scene.

Reasoning

The court found nothing on the record establishing Omas's competence: the magistrate's remark that the dog was 'well trained in tracking' was unsupported by any witness, and the handler PW5 made no such claim. Where several robbers touched items and left the scene, the significance of the dog following a particular scent cannot be weighed without expert evidence of what a tracker dog can and cannot do. Absent that, the tracking evidence had no ascertainable probative value.

p. 4
02

Whether the tracker dog's tracking alone could sustain a conviction

Holding

It is unsafe to rely solely on the fact that a tracker dog led the police to where an accused was found; corroboration by other evidence is required.

Reasoning

Applying that principle to the second and third appellants, the court held that the dog's picking up and following the scents of two different people from the same starting point, without any evidence of what a tracker dog can or cannot do, seemed unlikely and could not alone sustain a conviction. Their convictions were saved only by the independent fingerprint evidence placing them inside the complainant's house on the night of the robbery.

p. 4
03

Effect of inconsistencies between the two tracking officers

Holding

The differences between the evidence of PW5 and PW7 as to how the 1st appellant was apprehended by the dog were not sufficient to raise doubts as to the truth of their evidence.

Reasoning

Counsel for the appellants, Mr Patrick Kiage, argued that inconsistencies between the two officers' accounts of the dog's apprehension of Kibuthu undermined the prosecution case. Having set out both officers' testimony in full, the court found no material contradiction capable of creating reasonable doubt. The 1st appellant's conviction nonetheless failed because the dog evidence was itself unsupported by evidence of the animal's training and capability and no other evidence connected him to the offence.

p. 4
04

Proof of the 1st appellant's guilt to the required standard

Holding

Where the accused is identified by no witness, no stolen property is traced to him, his fingerprints are not found at the scene and the only other evidence is deficient tracker dog evidence, his guilt is not proved beyond reasonable doubt.

Reasoning

The court catalogued the absence of any evidence connecting Kibuthu to the robbery: no complainant recognised him, none of the stolen items was traced to him and his prints were not found in the house. With the tracker dog evidence unsafe for want of expert support, nothing remained to prove guilt to the criminal standard. The court was fortified by the decision of Senior State Counsel Mr Orinda not to support the conviction.

p. 4
05

Probative value of fingerprint evidence recovered at the scene

Holding

Fingerprints lifted from inside the complainant's house matching an accused, coupled with the absence of any evidence that he had ever been in or near the house before, prove that he was in the house on the night of the robbery and took part in it.

Reasoning

PW9 lifted ten prints from various surfaces at about 10.30 a.m. on the day after the robbery and submitted them with elimination prints to the Criminal Records Office, which matched Lift No. 2 to Kinyua and Lift Nos. 4 and 8 to Mwendwa. Both courts below accepted the evidence without doubt. Since neither accused was ever shown to have been in or near the house previously, the only reasonable inference was presence as part of the robbery gang, corroborated by the dog leading police to them.

p. 5

Legal principles established

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  • A conviction cannot safely be founded on tracker dog evidence unless evidence is adduced of the dog's training and experience and expert evidence as to what a tracker dog can and cannot do.
  • It is unsafe to convict solely on the fact that a tracker dog led the police to where an accused person was found; independent corroborative evidence is required.
  • Where an accused's fingerprints are found at the scene of a robbery and there is no evidence that he was ever in or near the premises on any previous occasion, the fingerprint evidence establishes his presence and participation in the offence.
  • Guilt must be proved beyond reasonable doubt; where the only linking evidence is deficient and no other evidence connects the accused to the offence, the conviction cannot stand.

Court orders

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  1. 1.Appeal of the 1st appellant David Njeru Kibuthu allowed; his conviction quashed and the sentence of death imposed upon him set aside
  2. 2.The 1st appellant ordered released forthwith unless otherwise lawfully held
  3. 3.Appeals of the 2nd appellant Joseph Mbogo Kinyua and the 3rd appellant David Njeru Mwendwa dismissed
On appeal from
High Court of Kenya at Nyeri
H.C. Cr. Appeal Nos. 297, 298 & 299 of 1996
Jurisdiction invoked
Not expressly stated in the judgment; the matter was before the Court of Appeal as a second criminal appeal from a first appeal in the High Court. No constitutional or statutory provision conferring jurisdiction is cited.

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, "David Njeru Kibuthu & others v Republic [2005] KECA 304 (KLR)", Case Analysis (2005). Criminal Appeal 7, 8 and 9 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/304/eng@2005-05-20

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