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Court of AppealPartially AllowedCriminal Appeal 301 of 2009

Lewis Musundi Makoyi v Republic [2010] KECA 250 (KLR)

Court of Appeal of Kenya
28 May 2010
Philip Kiptoo TunoiP.K. TunoiJOJ.W. Onyango OtienoJNJ.G. Nyamu
1,528 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man sentenced to death because a flawed identification parade and unproven ownership of a house made the robbery conviction unsafe.

What this practically means

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Executive summary

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This is a second appeal against conviction for robbery with violence contrary to section 296(2) of the Penal Code and a death sentence imposed by the Principal Magistrate's Court at Bungoma and affirmed on first appeal by the High Court at Bungoma (Muchemi and Chitembwe JJ) on 14th July 2009. The complainant, a motor bike taxi operator, was attacked at dusk by two passengers who stole his motorcycle; he conceded he did not identify his attackers in the darkness. The motorcycle was recovered in a house within the homestead of the appellant's parents, in the absence of the appellant, together with his identity card, photographs and other documents. The Court of Appeal framed two issues: identification of the appellant and the duty of the first appellate court to re-evaluate the evidence. It held it illogical to conclude that documents found in a house prove the document-owner owns the house, absent evidence of ownership or occupation. It further held the identification parade fatally defective because the appellant, the only suspect with a bandaged hand, was identified by that disfigurement contrary to the Police Force Standing Orders, applying Njihia v Republic and Oluoch v R. The court also faulted the first appellate court for failing to examine the identification evidence afresh. The conviction was quashed, the death sentence set aside, and the appellant set at liberty. The court declined to determine the alleged constitutional breach under section 77(2)(b). No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the identification of the appellant, particularly through the identification parade, was satisfactory and safe
  2. 2.Whether the first appellate court adequately re-evaluated the evidence on identification as it was required to do
  3. 3.Whether possession of the stolen motorcycle could be visited upon the appellant given that the house of recovery was not proved to be his
  4. 4.Whether the appellant's constitutional rights under section 77(2)(b) of the Constitution were violated regarding the language of testimony

Key legal issues

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01

Whether the conviction was safe where the complainant did not positively identify his assailant and the stolen motorcycle was found in a house not proved to belong to the appellant

Holding

The case against the appellant was not proved beyond reasonable doubt; the conviction was unsafe.

Reasoning

The complainant admitted he did not identify his attackers in darkness. The motorcycle was recovered from a house within the appellant's parents' homestead in the absence of the appellant and his parents, and no evidence was tendered showing ownership of the house or that the appellant had been seen there at the material time. The mere presence of the appellant's documents in a house does not prove he owned it. The chain of inference from recovery to possession was therefore broken, rendering the conviction unsafe.

p. 3
02

Whether the identification parade was properly conducted

Holding

The parade was improper and prejudicial because the appellant, the only person with a bandaged hand, was picked out on account of that disfigurement contrary to the Police Force Standing Orders.

Reasoning

PW1 identified the appellant by the bandage on his hand, presumably the injury inflicted during the robbery, rather than by any recollection of the assailant's face. Standing Orders required facilities to ensure a suspect's disfigurement is not especially apparent in a parade. Placing a bandaged suspect among eight able-bodied persons was a mockery of justice. The court relied on Njihia v Republic and Oluoch v R. This was the principal ground on which the appeal was allowed.

p. 4
03

Whether the first appellate court discharged its duty to re-evaluate the evidence

Holding

It did not; the superior court failed to subject the identification evidence to a fresh and exhaustive examination and to make its own findings.

Reasoning

Although the first appellate court stated the identification evidence was crystal clear and corroborated, it neither resolved the question of ownership of the house where the motorcycle was recovered nor critically appraised the flawed identification parade. Its finding that PW1 identified the appellant during daylight contradicted PW1's own testimony that he was attacked in darkness and did not identify his attackers. This failure independently justified interference on second appeal.

p. 4

Legal principles established

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  • Findings of personal documents in a house do not, per se, prove beyond reasonable doubt that the owner of the documents owns the house; possession of stolen property cannot be imputed without evidence of ownership or occupation of the house of recovery.
  • An identification parade is improperly conducted where the suspect bears a disfigurement or distinguishing mark (such as a bandaged hand) that is not concealed, so that the witness identifies the suspect by that feature rather than by recollection of the assailant.
  • The first appellate court must subject the evidence on identification to a fresh and exhaustive examination and make its own findings.

Court orders

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  1. 1.The appeal is allowed mainly on the ground of an unsatisfactory identification parade
  2. 2.The conviction is quashed and the sentence of death is set aside
  3. 3.The appellant is set at liberty forthwith unless otherwise lawfully held

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority
JO
majority
JN
majority
On appeal from
High Court of Kenya at Bungoma
H.C.CR.A. No. 82 of 2009
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code following dismissal of a first appeal to the High Court (no specific provision quoted in the judgment)

Relief refused

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Determination of the alleged breach of the appellant's constitutional rights under section 77(2)(b) of the Constitution

The court saw no need to determine the constitutional issue since the appeal succeeded on the identification parade ground

p. 4

Costs

No order as to costs was made in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It would, in our view, be illogical to conclude that the mere findings of some documents in a certain house per se does prove beyond reasonable doubt that the owner of those documents is the owner of the house.
p. 3Possession of stolen property and ownership of house of recovery
It was prejudicial to the appellant and indeed a mockery of justice to place the appellant with a bandaged hand among eight healthy persons with no apparent physical disabilities.
p. 4Defective identification parade
we think that the case against the appellant was not proved beyond all reasonable doubt. The conviction therefore is unsafe.
p. 4Standard of proof and unsafe conviction
In the result, the conviction is quashed and the sentence of death is set aside. The appellant is set at liberty forthwith unless otherwise lawfully held. We so order.
p. 4Final orders and disposition

Issues in the judgment

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material

The coram lists three judges but the judgment states that Nyamu JA declined to sign it; the judgment was nevertheless delivered under rule 32(2). It is therefore unclear whether it is a judgment of two judges or of the full bench, and Nyamu JA's position cannot be verified from the judgment.

minor

The court states the identification parade was the main ground for allowing the appeal, yet the safest ground on the reasoning appears to be failure of proof of possession; the primacy of grounds is not clearly explained.

minor

The first appellate court's finding that PW1 identified the appellant in daylight after thirty minutes as a passenger contradicts PW1's trial testimony that he was attacked in darkness and had not known the appellant before; the High Court judgment quoted appears internally inconsistent with the record.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Lewis Musundi Makoyi v Republic [2010] KECA 250 (KLR)", Case Analysis (2010). Criminal Appeal 301 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/250/eng@2010-05-28

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