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Court of AppealPartially AllowedCriminal Appeal 76 of 2007· [2009] KECA 339 (KLR)

Martin Mugambi Karindi v Republic [2009] KECA 339 (KLR)

Court of Appeal of Kenya
15 May 2009
ROR.S.C. OmoloEGE. M. GithinjiAVAlnashir Visram
1,756 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a robbery conviction because torchlight identification and a doubtful police record left room for reasonable doubt.

What this practically means

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Executive summary

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This was a second appeal against conviction and sentence for robbery with violence contrary to section 296(2) of the Penal Code, for which the appellant had been sentenced to death by the Senior Resident Magistrate's Court at Meru on 23rd March 2006. His first appeal to the High Court at Meru (Lenaola and Ouko, JJ.) was dismissed on 13th July 2007. Before the Court of Appeal at Nyeri, the appellant raised eight grounds, but the Court identified only three as raising issues of law within its jurisdiction under section 361 of the Criminal Procedure Code: identification, violation of constitutional rights, and the failure to record the language of the proceedings. The Court confined itself to identification. Although both the magistrate and the High Court had accepted a case of recognition - the complainant flashing a torch on the appellant's unmasked face as robbers cut into his shop at about 2 a.m. during a power blackout - the Court of Appeal was not persuaded that identification was free from doubt. There was no evidence of the distance between the witness and the appellant, and although the robbers spoke to witnesses who knew the appellant from childhood, there was no evidence of voice recognition. Further, the Occurrence Book recording the first report had gone missing and the portion produced covered an unusual period, casting doubt on its authenticity. The Court held the conviction unsafe, allowed the appeal, quashed the conviction, set aside the death sentence, and ordered the appellant's immediate release unless otherwise lawfully held.

Key legal issues

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01

Sufficiency of identification by recognition in darkness

Holding

The conviction was unsafe: there was no power at the material time, no evidence of the distance between the identifying witness and the appellant, and no evidence of voice recognition despite the robbers having spoken to the witnesses who knew the appellant from childhood.

Reasoning

The Court, exercising its second-appeal jurisdiction on matters of law only, re-examined whether the identification evidence excluded all doubt. The absence of electricity meant the only light came from torches; no evidence fixed the distance at which PW1 flashed his torch on the appellant's face as the mask came off. Since the robbers spoke to PW1 and PW2, who knew the appellant from childhood, the lack of voice-recognition evidence left room for doubt.

p. 3
02

Authenticity of the first report (O.B.) to the police

Holding

Doubts about the O.B. report - which went missing and was produced only on court order, and covered an unusual period - undermined confidence in the first report naming the appellant.

Reasoning

The O.B. was produced only after the lower court ordered it, and the book produced covered only 6th May to 2nd July 2002, an unusual period since such books normally cover an entire year. These circumstances raised a doubt in the Court's mind about the authenticity of the first report implicating the appellant, compounding the deficiencies in the identification evidence.

p. 3

Legal principles established

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  • On a second appeal the Court of Appeal considers only matters of law, not matters of fact, by dint of section 361 of the Criminal Procedure Code
  • Where evidence of visual identification rests on torchlight with no evidence of distance or voice recognition despite opportunity for it, and the first report's authenticity is doubtful, a conviction is unsafe and must be quashed

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction quashed
  3. 3.Sentence set aside
  4. 4.Appellant released from prison forthwith unless otherwise held for some other lawful cause

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 361
  • Criminal Procedure Codesection 198
  • Constitution of Kenyasection 72
  • Constitution of Kenyasection 77
  • Evidence Act

Cases cited (1)

  • OKENO VS. R.
    (1972) E.A. 32
On appeal from
High Court of Kenya at Meru
H.C.CR.A. No. 37 of 2006
Jurisdiction invoked
Second appeal under section 361 of the Criminal Procedure Code, limited to matters 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, "Martin Mugambi Karindi v Republic [2009] KECA 339 (KLR)", Case Analysis (2009). Criminal Appeal 76 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/339/eng@2009-05-15

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