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Court of AppealAllowedCriminal Appeal 58 of 1998

Lemarantin Loitan & Another v Republic

Court of Appeal of Kenya
12 May 2006
ROR.S.C. OmoloPhilip Kiptoo TunoiP.K. TunoiPWP.N. Waki
932 words in judgment
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The bottom line

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Kenya's Court of Appeal freed two death-row inmates because flawed identification parades and missing evidence made their robbery conviction unsafe.

What this practically means

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Executive summary

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The two appellants were convicted by a trial magistrate of robbery with violence contrary to section 296(2) of the Penal Code, arising from the robbery of a tourist driver, Mburu Karanja, of Shs.25,000 and a watch at Isiolo River, Buffalo Springs, on 4th March 1997. A third accused was acquitted. On first appeal, the High Court at Meru (Etyang and Juma, JJ.) allowed the appeal on a second count but dismissed it on the first count and confirmed the death sentence. The appellants then appealed to the Court of Appeal at Nyeri, which as a second appeal was confined to matters of law. The Court agreed with the High Court that the complainant's identification-parade evidence was flawed because the parades were held only after he had already identified the appellants from a group of people in a vehicle. The Court further noted that the jacket said to have been found in the appellants' possession, containing parts of burnt documents recovered near a manyatta, was never produced in evidence and no explanation was given for its absence; the French tourist couple who could have identified the documents did not testify. Mr. Orinda, Principal State Counsel, conceded the appeal on behalf of the Republic, and the Court agreed the concession was properly made. Holding the conviction unsafe, the Court allowed the appeal, quashed the conviction, set aside the death sentences, and ordered the immediate release of each appellant unless held for other lawful cause. The judgment was delivered at Nyeri on 12th May 2006 by Omolo, Tunoi and Waki, JJA.

Key legal issues

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01

Safety of conviction based on flawed identification and unproduced exhibits

Holding

The conviction was unsafe and could not stand; the appeal was allowed and the conviction quashed.

Reasoning

The identification parades were conducted only after the complainant had already identified the appellants from a group of people in a vehicle, rendering the parades worthless. Further, the jacket said to contain burnt documents was never produced in evidence, and the French tourists who could have identified the documents did not testify. With no explanation for the missing jacket, the evidence linking the appellants to the robbery was too weak to sustain a conviction.

p. 2

Legal principles established

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  • Where identification parades are held after a suspect has already been shown to a complainant, the resulting parade identification is flawed and cannot sustain a conviction.
  • Where key exhibits (the jacket and burnt documents) are not produced in evidence and no explanation is given, a conviction founded on them is unsafe.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction on the first count quashed
  3. 3.Sentence of death imposed on each appellant set aside
  4. 4.Each appellant to be released from prison forthwith unless held for some other lawful cause
On appeal from
High Court of Kenya at Meru
H.C.CR.A. No. 43 of 1998
Jurisdiction invoked
Second appeal on matters of law only, under the Court's appellate jurisdiction over High Court criminal appeals

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, "Lemarantin Loitan & Another v Republic", Case Analysis (2006). Criminal Appeal 58 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/244/eng@2006-05-12

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