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Court of AppealDismissedCriminal Appeal 284 of 2005· [2009] KECA 101 (KLR)

Shalen Shakimba Ole Betui & another v Republic [2009] KECA 101 (KLR)

Court of Appeal of Kenya
23 October 2009
DAD. K. S. AganyanyaAVAlnashir VisramJNJ. G. Nyamu
2,110 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 confirmed that recognising a known person in daylight is reliable identification evidence, and second appeals can only challenge legal errors.

What this practically means

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Executive summary

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The appellants were convicted by the Senior Resident Magistrate's Court at Kajiado on two of three counts of attempted robbery contrary to section 297(2) of the Penal Code and sentenced to death. Their first appeals to the High Court at Nairobi (Lesiit and Makhandia, JJ) were dismissed on 6th May 2004. On second appeal to the Court of Appeal, only points of law fell for consideration under section 361(1) of the Criminal Procedure Code. Counsel for the appellants abandoned the original grounds and argued that the superior court failed to analyze the evidence, shifted the burden of proof, convicted on inadequate evidence, and ignored contradictions; reliance was placed on night-time identification authorities. The Republic supported the conviction, stressing concurrent findings on identification. The Court of Appeal held the sole legal issue was identification of the appellants during the commission of the offence. Distinguishing the night-time authorities, it held the case was one of recognition rather than identification: the attack occurred in daylight, at about 30 metres, and both eye-witnesses had known the appellants for substantial periods. It applied the Bukenya principle that failure to call a witness attracts only an adverse inference, and found the trial magistrate rightly declined to draw it, while non-recovery of exhibits was immaterial to an attempted robbery. Satisfied with the concurrent findings of the two courts below, the court found no merit in the appeals and dismissed them. The judgment is a single judgment of the whole court; no costs order was made.

Key legal issues

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01

Identification and recognition of the appellants at the scene

Holding

The court held that the appellants were positively identified and recognized in circumstances conducive to proper recognition, being daytime and close range, with prior familiarity with both eye-witnesses, and that there was no possibility of mistaken identity

Reasoning

The offence occurred in daylight; PW1 and PW2 had known the appellants for six months and over ten years respectively; they saw the appellants about 30 metres away, facing them. Night-time identification authorities relied on by counsel were distinguished. The court held recognition cases are more reliable than stranger identification and, absent a need for caution applicable in darkness cases, the concurrent findings of the two lower courts stood.

p. 3
02

Failure to call certain witnesses and non-recovery of exhibits

Holding

The failure to call Thuo and others did not vitiate the conviction; at most an adverse inference could be drawn, and the superior court rightly declined to draw it. Non-recovery of exhibits was immaterial since the charge was attempted robbery.

Reasoning

Following Bukenya v Republic, failure to call a witness permits only an adverse inference that the witness's evidence would have been adverse to the prosecution, not an acquittal. The judges of the superior court found the trial magistrate right not to draw that inference. Because the offence was an attempted robbery, recovery of exhibits such as the gun or the lorry was not a necessary element of proof.

p. 3
03

Scope of a second appeal and the sufficiency of the superior court's analysis of evidence

Holding

The court was satisfied the superior court analyzed the evidence as a whole and reached its own independent conclusion, and that the contradictory-evidence argument had no substance

Reasoning

As a second appeal, only points of law fell for determination under section 361(1) of the Criminal Procedure Code. The court found the superior court had independently re-evaluated the trial evidence and concurred with the trial magistrate's finding on identification, so the grounds alleging failure to analyze the evidence and contradictions could not succeed.

p. 3

Legal principles established

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  • On a second appeal, only points of law fall for consideration by the Court of Appeal
  • The special caution required for identification evidence in night-time cases does not apply to daytime recognition of a person known to the witness; recognition is more reliable than identification of a stranger
  • Where the prosecution fails to call a witness, the court may only draw an adverse inference that the witness's evidence would have been adverse to the prosecution case, and the court is not bound to draw that inference
  • The Court of Appeal will not interfere with concurrent findings of fact by the two courts below where they are supported by sound evidence

Court orders

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  1. 1.The appeals against the convictions and sentences are dismissed
On appeal from
High Court of Kenya at Nairobi
H.C.Cr.A. Nos. 1400 & 1401 of 2000
Jurisdiction invoked
Second appeal under section 361(1) of the Criminal Procedure Code, restricted to points of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shalen Shakimba Ole Betui & another v Republic [2009] KECA 101 (KLR)", Case Analysis (2009). Criminal Appeal 284 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/101/eng@2009-10-23

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