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Court of AppealDismissedCriminal Appeal 292 of 2008· [2009] KECA 295 (KLR)

Daniel Onyango Ochieng & 1 other v Republic

Court of Appeal of Kenya
19 June 2009
Philip Kiptoo TunoiP.K. TunoiPWP.N. WakiAVAlnashir Visram
1,459 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a properly run identification parade can sustain a robbery conviction, and second appeals only review legal errors.

What this practically means

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Executive summary

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This was a second and final appeal before the Court of Appeal at Kisumu arising from a robbery-with-violence conviction. At the hearing the Court noted that the first appellant, Daniel Onyango Ochieng, had died on 17th July 2008, and his appeal abated under Rule 68(2) of the Court of Appeal Rules. The appeal proceeded only for the second appellant, Gafar Idi Odongo, who had been convicted by the Chief Magistrate's Court at Kisumu of four counts of robbery with violence contrary to section 296(2) of the Penal Code (sentenced to death) and one count of personating a police officer (12 months imprisonment); his first appeal to the High Court (Mwera & Mugo, JJ.) was disallowed on 6th May 2008. Counsel for the appellant argued a single ground: that the identification parade was not conducted to the required standard, alleging that the investigating officer had suggested the suspects to witnesses, exposed the appellant as a 'terrorist', and that witness descriptions were not taken before the parade. The Court reiterated that under section 361 of the Criminal Procedure Code a second appeal is confined to matters of law, and treated identification as such an issue. It found no evidence of the alleged irregularities, noted that five eyewitnesses had electricity lighting and some three hours with the attackers, and that the appellant's distinctive 'box punk' haircut made him readily identifiable. The concurrent findings of the two courts below were affirmed and the appeal dismissed.

Key legal issues

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01

Whether the identification parade was conducted irregularly so as to vitiate the conviction

Holding

The contention that the parade was irregularly conducted was rejected; the concurrent findings of the two courts below that the appellant was properly identified both at the scene and at the parade were sound and were affirmed.

Reasoning

The Court, sitting on a second appeal limited to questions of law, found that the identification issue was one of law properly before it. It discerned no evidence of the alleged irregularities: no failure to take descriptions of suspects beforehand, no exposure of the appellant as a 'terrorist', and no pointing out by the investigating officer. The witnesses had electricity lighting and three hours with the attackers, and the appellant's distinctive 'box punk' haircut aided identification.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not disturb concurrent findings of fact by the two courts below

Court orders

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  1. 1.The first appellant's appeal abated under Rule 68(2) of the Court of Appeal Rules following his death on 17th July, 2008
  2. 2.The second appellant's appeal against conviction and sentence was dismissed
On appeal from
High Court of Kenya at Kisumu
H.C.CR.A. No. 34, 35 & 36 of 2006
Jurisdiction invoked
Second appeal under section 361 of the Criminal Procedure Code, confining the Court to matters of law

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, "Daniel Onyango Ochieng & 1 other v Republic", Case Analysis (2009). Criminal Appeal 292 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/295/eng@2009-06-19

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