Kimani Macharia v Republic [2011] KECA 195 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a death sentence, ruling that unchallenged identification evidence and issues never raised at trial cannot win an appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the evidence of identification of the appellant by PW 2 and PW 5 was safe and reliable
- 2.Whether the identification parade was conducted in accordance with the applicable rules, given the concealment of the appellant's plastered leg with a table
- 3.Whether the evidence adduced was contradictory, unreliable and unsafe to sustain a conviction
- 4.Whether the courts below shifted the burden of proof onto the appellant
- 5.Whether the appellant's constitutional rights under Section 72(3) of the retired Constitution were contravened by his detention in police cells for 19 days before arraignment
Key legal issues
#Sufficiency and reliability of visual identification evidence on second appeal
The challenge to the identification evidence failed because the identifying witnesses were found credible by both courts below and were not challenged in cross-examination.
The court held that a second appeal does not permit re-evaluation of concurrent credibility findings absent a demonstrated defect. The witnesses PW 2 and PW 5 identified the appellant at an identification parade, and the appellant's counsel had the opportunity to test their evidence in cross-examination but did not. The specificity of lighting conditions and physical description, though argued, did not displace the concurrent findings of the two lower courts.
Compliance with identification parade rules where a table concealed the legs of participants
There was satisfactory compliance with the identification parade rules because the table concealed the legs of all participants, not only the appellant's.
The appellant argued that the officer conducting the parade placed a table to conceal the appellant's plaster of Paris cast, thereby rendering the parade unfair. The court reasoned that since the table concealed the legs of everyone who took part in the parade, no participant was singled out or unfairly distinguished, and the purpose of the rules was satisfied.
Raising a constitutional violation (Section 72(3) of the retired Constitution) for the first time on appeal
A claim of violation of Section 72(3) of the retired Constitution fails where it was never raised in the superior court as required by Section 84 of the retired Constitution.
The appellant complained that he was detained in police custody for 19 days before arraignment, contrary to Section 72(3). The court held that this ground could not be entertained on appeal because the constitutional enforcement mechanism under Section 84 had not been invoked in the superior court, and nothing on the record supported it there.
Alleged shifting of the burden of proof and contradictory evidence
Both grounds failed for want of any supporting material on the record.
The court examined the memorandum of appeal grounds alleging contradictory evidence and a shifting of the burden of proof onto the appellant. It found nothing in the record supporting either allegation, and dismissed them without further analysis, consistent with the principle that appellate grounds must be anchored in the evidence.
Legal principles established
#- On a second appeal, this Court will not interfere with concurrent findings of fact by the two courts below, including findings on the credibility of identification evidence, unless those findings are shown to be unsupported by the record.
- An alleged breach of Section 72(3) of the retired Constitution cannot be raised for the first time on appeal where no complaint was made in the superior court in accordance with Section 84 of the retired Constitution.
Court orders
#- 1.The appeal is dismissed
- 2.The conviction on the second count of attempted robbery with violence and the sentence of death imposed by the trial court and upheld by the High Court remain in force
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- HCCRA No. 84 of 2007
- Jurisdiction invoked
- Second and final appeal to the Court of Appeal under the appellate jurisdiction over criminal appeals from the High Court (statutory, pre-2010 framework; no specific constitutional provision cited in the judgment)
Relief refused
#Quashing of conviction and setting aside of the death sentence as sought in the memorandum of appeal
The court found the identification evidence credible and unchallenged in cross-examination, found satisfactory compliance with the identification parade rules, and found no merit in the remaining grounds
Adoption of the State counsel's concession of the appeal
The court declined to give weight to the concession, finding the grounds of appeal unsubstantiated
Costs
No costs order was made in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
All in all and with respect to learned Principal State Counsel, we find ourselves unable to place much weight to his concession and for the reasons specified above, the appeal is accordingly dismissed.
the challenge on identification cannot be sustained because the evidence of PW 2 and W 5 was found credible by the two courts below and was in fact not challenged in cross examination by the appellant although he was accorded an opportunity to do so
since the table concealed the legs of all those who took part in the robbery we find that there was satisfactory compliance with the identification parade rules
nothing was raised in the superior court pursuant to the requirements of Section 84 of the retired Constitution and therefore, nothing turns on this
Issues in the judgment
#The court refers to witnesses PW 2 and W 5 interchangeably, and elsewhere the identification witnesses are named as Margaret Wanjiru (PW 2) and Lydia Njeri Maina (PW 5); the abbreviation 'W 5' appears inconsistent with 'PW 5' used elsewhere.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani Macharia v Republic [2011] KECA 195 (KLR)", Case Analysis (2011). Criminal Appeal No. 120 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/195/eng@2011-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.