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Court of AppealDismissedCriminal Appeal 77 of 2007· [2010] KECA 240 (KLR)

Leshon Lekakio & another v Republic [2010] KECA 240 (KLR)

Court of Appeal of Kenya
28 May 2010
EOE.O. O'KubasuEGE.M. GithinjiDAD.K.S. Aganyanya
2,077 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that detailed witness identification during a three-hour robbery under a hurricane lamp was reliable enough to sustain a death sentence.

What this practically means

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Executive summary

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This was a second and final appeal to the Court of Appeal at Nakuru by two appellants convicted of robbery with violence contrary to section 296(2) of the Penal Code, the first appellant facing an additional defilement charge under section 145(1). After a full trial before the Principal Magistrate, both were convicted and sentenced to death on the robbery charge; the first appellant received ten years' imprisonment for defilement. Their first appeal to the High Court (Musinga & Kimaru, JJ.) was dismissed on 16th March 2007, though the High Court set aside the ten-year defilement sentence in view of the death sentence. Before the Court of Appeal, counsel for the appellants pressed a single ground: that the night-time identification of the appellants by the complainant's family was unreliable and amounted to mistaken identity, particularly as nothing was recovered from the appellants. The State submitted the identification was sound given the three-hour duration of the robbery, the hurricane lamp lighting, and the prompt descriptions given to police. The Court, confined by section 361(1) of the Criminal Procedure Code to matters of law, framed identification as the sole issue. It found the identification evidence very sound: the robbers concealed neither their faces nor their identities, were illuminated by a hurricane lamp, were described in detail in the first police report made about twelve hours later, and were picked out unhesitatingly at an identification parade held about four days after the incident. Discerning no error in the concurrent findings of the two courts below, the Court dismissed the appeal and upheld the convictions and sentences.

Key legal issues

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01

Sufficiency and reliability of evidence of visual identification as the sole basis of conviction

Holding

The conviction was soundly based on identification: the witnesses were with the robbers for about three hours under light from a hurricane lamp, made no mistaken identification, gave detailed descriptions to police within about twelve hours, and pointed out the appellants at an identification parade held about four days later

Reasoning

The Court reviewed the concurrent findings of the two courts below. The robbery lasted over three hours, the robbers made no effort to conceal their faces, a hurricane lamp illuminated the room, and PW1 gave a detailed description of the robbers in his first report to the police the following morning. The identification was corroborated by a police identification parade at which the three witnesses unhesitatingly identified the appellants. The Court found no error in the treatment of identification by the courts below.

p. 3
02

Scope of a second appeal under section 361(1) of the Criminal Procedure Code

Holding

Only matters of law fall for consideration on a second and final appeal to the Court of Appeal

Reasoning

The Court noted that the appeal before it was a second and final appeal, and that section 361(1) of the Criminal Procedure Code confines its consideration to matters of law. It accordingly framed the single issue as whether the identification evidence was sound in law, without disturbing factual findings that were supported by the record.

p. 1

Legal principles established

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  • On a second appeal, the Court of Appeal is confined by section 361(1) of the Criminal Procedure Code to matters of law only

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The conviction and sentence of the appellants are upheld
On appeal from
High Court of Kenya at Nakuru
H.C.CR.A. No. 286 & 287 of 2003
Jurisdiction invoked
Second and final appeal under section 361(1) of the Criminal Procedure Code, restricted 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, "Leshon Lekakio & another v Republic [2010] KECA 240 (KLR)", Case Analysis (2010). Criminal Appeal 77 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/240/eng@2010-05-28

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