PARATOTI OLE TEMA v REPUBLIC [2006] KECA 164 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a death sentence for attempted robbery, ruling that a single credible daylight eyewitness identification was enough evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether a conviction founded on the evidence of a single identifying witness requires corroboration as a matter of law.
No. Corroboration is a matter of law only in specific cases (e.g. a child of tender years) and a matter of practice only where identification conditions are difficult. Here the offences occurred in broad daylight, the witnesses observed the appellant for long, and Kennedy was close enough (about 50 metres) to shoot him, so his uncorroborated identification sufficed.
The court distinguished Libambula v R, where the robbery was committed at night with a torch as the only source of light, making identification conditions difficult. In the present case Kennedy saw the appellant and two others in broad daylight from about 50 metres away; he fired and hit one of them, showing he was close enough not to miss his target, pursued them without losing sight, and shot and disabled the appellant. The circumstances therefore could not create a doubt as to the correctness of the identification.
Whether the evidence of Caroline and Gladys was worthless because, as implied by the appellant, they were called to the scene only after his arrest.
Their evidence was properly taken into account. The two attempted robberies were closely interrelated and part of the same res gestae; the two women independently went to the police station to report the incident at their premises, were not present at the arrest scene, and identified the appellant at a well-conducted identification parade.
The appellant, according to the prosecution, was arrested as he escaped from Kisegi Agencies, and he and his confederates attempted to rob Farah of a motor vehicle to escape fast. The two offences therefore formed part of the same res gestae, so the testimony of the two women could not be isolated from that of Kennedy. Counsel's suggestion that the witnesses were exposed to the appellant after arrest was contradicted by the finding that they independently went to the police station to make a report.
Whether an adverse inference should be drawn against the prosecution for failing to call certain essential witnesses.
No. The prosecution is not bound to call more witnesses than are necessary to establish a particular fact, and the adverse inference contemplated by Bukenya v Uganda arises only where the evidence adduced is barely sufficient to support the charge. Here the evidence against the appellant was overwhelming, so the submission failed.
The court restated the Bukenya principle as one of law: the inference that uncalled witnesses would have given adverse testimony is drawn only where the evidence adduced is barely sufficient to support the charge. Since the court had already found the evidence of identification overwhelming, counsel's ground that essential witnesses were not called was characterised as clearly flimsy and without merit.
Whether the plea was properly taken where the record is silent as to whether the charge was explained to the appellant.
The plea was properly taken and no miscarriage of justice was shown.
Although the record was silent on whether the charge was explained to the appellant, the same record showed that he responded to each charge, pleaded not guilty to each count, and the case proceeded to a full hearing at which witnesses testified, he cross-examined them, and he presented his own defence. The court could not see how the appellant was prejudiced, if at all.
Legal principles established
#- Corroboration of an identifying witness is not required as a matter of law; it is required as a matter of law only in specific cases (such as a child of tender years) and as a matter of practice only where circumstances favouring a correct identification are difficult.
- The prosecution is not bound to call every possible witness; an adverse inference that uncalled witnesses' testimony would have been adverse to the prosecution arises only where the evidence adduced is barely sufficient to support the charge.
- Where two offences are part of the same res gestae, evidence on one is relevant to and may be considered alongside evidence on the other.
- On a second appeal, the Court of Appeal will not disturb concurrent findings of fact made by the two courts below.
- Silence in the record as to whether the charge was explained to an accused does not, without demonstrable prejudice, vitiate a trial where the record shows the accused responded to each charge and had a full hearing.
Court orders
#- 1.The appellant's appeal against both conviction and sentence is hereby dismissed in its entirety; the conviction on the second count of attempted robbery with violence and the sentence of death (upheld by the High Court) accordingly stand.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.CR.A. NO.87 OF 2004
- Jurisdiction invoked
- Not expressly invoked in the judgment. The matter came before the Court of Appeal as a second appeal in a criminal case from the High Court; the judgment identifies it only by stating 'This is a second appeal' and cites no constitutional or statutory provision as the source of jurisdiction.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- In re Estate of Late Mohamed Omar Sala alias Mohamed Abdo Sala (Deceased) (Succession Cause E033 of 2023) [2023] KEKC 28 (KLR)[2023] KEKC 28 (KLR)21 Nov 2023applied
- In re Estate of Abdikadir Abdi Ibrahim (Deceased) (Succession Cause E014 of 2023) [2023] KEKC 24 (KLR)[2023] KEKC 24 (KLR)15 Sept 2023followed
- Janet Bochere Wamoto v Elizabeth Nabangala Wekesa (suing as the administrator of the estate of the late George Anzilalle Imbuchi) [2017] KEELC 2516 (KLR)[2017] KEELC 2516 (KLR)29 May 2017followed
- Roshanali Sherali Jivraj v Muvavara A. Gulamhussein & 2 others [2017] KEELC 2816 (KLR)[2017] KEELC 2816 (KLR)25 May 2017distinguished
- Daudi Leche Rono & 749 others v Woragus Limited & 6 others [2017] KEELC 3466 (KLR)[2017] KEELC 3466 (KLR)16 Feb 2017
- Nawaz Abdul Manji & 4 others v Vandeep Sagoo & 8 others [2017] KEELC 3645 (KLR)[2017] KEELC 3645 (KLR)18 Jan 2017
Cite this brief
#Cite this brief
Caselaw, "PARATOTI OLE TEMA v REPUBLIC [2006] KECA 164 (KLR)", Case Analysis (2006). Criminal Appeal 142 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/164/eng@2006-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.