LOISE KAGURE NJERU & another v REPUBLIC [2009] KECA 76 (KLR)
The bottom line
#Kenya's Court of Appeal freed two people sentenced to death because the first appeal court never properly re-examined weak identification evidence.
What this practically means
#Executive summary
#Key legal issues
#Duty of the first appellate court
The superior court failed to re-evaluate the evidence fully; it cited Okeno principles perfunctorily but did not apply them, warranting interference by the second appellate court.
The Court of Appeal found the superior court merely rehashed the principles in Okeno v. R. and Gabriel Kamau Njoroge without applying them. Issues such as the flawed identification parades, the pregnancy of the 1st appellant during the parade, the unexplained arrest of the 1st appellant and the absence of evidence on the 2nd appellant's arrest merited serious analysis. Had full re-evaluation been done, the court would in all probability have found the charge not proved.
Sufficiency of identification evidence
Night-time identification by lighting from nearby premises, without indication of distance or intensity, did not permit a certain identification; the identification parade evidence was further compromised.
The robbery occurred at night; the complainant did not switch on the car lights and did not indicate the distance or intensity of the lights used. The complainant claimed not to know the appellants, yet both contended he knew them before. The 1st appellant was visibly pregnant at the parade while the identifying witness had observed a scar; these defects, unaddressed by the courts below, undermined identification.
Custody period of the 2nd appellant
The 2nd appellant was kept in police custody about 20 days before being presented to court, contrary to section 72(3) of the Constitution; the first appellate court failed to decide the issue.
The charge sheet showed the 2nd appellant was arrested on 1st October 2003 and presented on 21st October 2003, well beyond the constitutional 14-day limit. He testified he was detained 16 days without being told the reason. The first appellate court merely glossed over this issue, denying him a decision on it.
Legal principles established
#- A first appellate court must re-assess, analyse and evaluate the evidence afresh and draw its own conclusions, giving allowance for the fact that it did not see or hear the witnesses.
- A first appellate court must give decisions on all issues raised by an accused, including complaints about identification parades and constitutional custody-period complaints; glossing over them is a failure of duty.
Court orders
#- 1.The appellants' respective appeals are allowed
- 2.Conviction for robbery with violence contrary to section 296(2) of the Penal Code is quashed
- 3.The sentence of death imposed on each appellant is set aside
- 4.The appellants should be set at liberty forthwith unless held for any other lawful reason
- On appeal from
- High Court of Kenya at Nyeri
- H.C.CR.A. NO. 161 & 171 OF 2005
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Constitution/Criminal Procedure Code (provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "LOISE KAGURE NJERU & another v REPUBLIC [2009] KECA 76 (KLR)", Case Analysis (2009). Criminal Appeal 147 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/76/eng@2009-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.