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Court of AppealAllowedCriminal Appeal No. 84 & 85 of 2008· [2013] KECA 296 (KLR)

Robert Charles Kariuki Gachiri & 3 others v Republic [2013] KECA 296 (KLR)

Court of Appeal of Kenya
25 July 2013
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
3,965 words in judgment
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The bottom line

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Kenya's Court of Appeal freed four men sentenced to death for robbery because the witness identification evidence was never properly tested.

What this practically means

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Executive summary

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This was a second appeal, consolidated as Criminal Appeal Nos. 84 and 85 of 2008, by four appellants convicted by the Senior Resident Magistrate's Court at Kigumo of two counts of robbery with violence and sentenced to death. The High Court at Nyeri (Kasango & Makhandia, JJ.) confirmed the convictions and the death sentence on one count. The Court of Appeal (Visram, Koome & Odek, JJ.A), exercising jurisdiction limited to matters of law under Section 361(1) of the Criminal Procedure Code, considered whether the evidence of visual and voice recognition was safe. The Court noted that both lower courts made concurrent findings that recognition was safe, but held that no evidence was led on the intensity, size and position of the light sources (kerosene lamps and torches) relative to the appellants, so the recognition evidence could not be properly tested. The Court also found it strange that the complainants, who claimed to know the appellants well, did not give their names or descriptions in the initial report made on the material day; the explanation that they were in shock was found implausible. The discrepancy between the assistant chief's testimony that the complainants named the appellants and the complainants' own evidence further cast doubt on the identification. Holding the recognition evidence unsafe, the Court allowed the appeal, quashed the convictions on both counts, set aside the death sentences, and ordered the appellants set at liberty forthwith unless otherwise lawfully held. No costs order was made.

Key legal issues

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01

Sufficiency of inquiry into lighting conditions when testing recognition evidence

Holding

The recognition evidence was unsafe because no information was given as to the intensity, size and position of the light sources relative to the appellants, and neither lower court demonstrated caution or made any inquiry into the nature of the light.

Reasoning

The Court accepted that visual identification evidence can cause miscarriage of justice if not carefully tested. Here the complainants claimed recognition by lamplight and torchlight, but no evidence was led on the intensity, size and positioning of those light sources relative to the appellants. Without that information the courts below could not properly test the recognition evidence, and the absence of inquiry meant the evidence could not be held free from error.

p. 5
02

Failure to give names or descriptions of assailants in the initial police report

Holding

The complainants' failure to name the appellants in their initial report made on the material day, despite claiming to know them well, cast doubt on the credibility of the recognition evidence.

Reasoning

The Court held that the earliest opportunity to indicate recognition was the initial report to police. Since the complainants alleged they knew the appellants very well, their omission to give names or descriptions at the Gakoigo Police Post was strange. The explanation that they were in shock was found implausible. Further, the assistant chief Jim said the complainants gave him the appellants' names, yet the complainants never stated this in evidence, compounding the doubt.

p. 6
03

Scope of second appellate jurisdiction

Holding

By dint of Section 361(1) of the Criminal Procedure Code, the Court's jurisdiction on second appeal is limited to matters of law only, though it found the identification evidence legally unsafe.

Reasoning

The Court framed its review within the statutory limit on second appeals, confining itself to whether the two courts below properly tested the recognition evidence as a matter of law. Having found no caution or inquiry into the light conditions and the unexplained omission of names in the first report, it concluded the evidence of identification was not proper and safe, making interference with the concurrent findings justified on a point of law.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law and will not interfere with concurrent findings of fact unless based on no evidence.
  • Where the only evidence against a defendant is identification or recognition evidence, the court must examine it carefully and be satisfied the circumstances were favourable and free from possibility of error before basing a conviction on it.
  • A court testing recognition evidence must inquire into the nature, intensity, size and position of the light source relative to the suspect; absent such inquiry the recognition evidence cannot be treated as free from error.
  • The court should inquire whether the complainant gave a description or name of the assailant at the earliest opportunity to those who came to their aid or to the police; failure to do so renders later recognition suspect unless explained.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction of all four appellants on the two counts of robbery with violence quashed
  3. 3.Death sentences meted out on the appellants set aside
  4. 4.All four appellants ordered set at liberty forthwith unless otherwise lawfully held

Authorities

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Legislation

  • Penal Code, Chapter 63 of the Laws of KenyaSection 296(2)
  • Penal Code, Chapter 63 of the Laws of KenyaSection 140
  • Penal Code, Chapter 63 of the Laws of KenyaSection 144(1)
  • Criminal Procedure Code, Chapter 75, Laws of KenyaSection 361(1)

Cases cited (6)

  • Chemagong vs. Republic
    (1984) KLR 213
  • Reuben Karari s/o Karanja vs. Republic
    17 EACA 146
  • Wamunga vs. Republic
    (1989) KLR 424
  • Maitanyi -vs- Republic
    (1986) KLR 198
  • Simiyu & another – v- R
    {2005} 1 KLR 192
  • Wanjohi & Others -vs- Republic
    (1989) KLR 415
On appeal from
High Court of Kenya at Nyeri
H.C.CR. A No. 86 of 2005 consolidated with 112 of 2005
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code, Chapter 75, Laws of Kenya (second appeal confined 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, "Robert Charles Kariuki Gachiri & 3 others v Republic [2013] KECA 296 (KLR)", Case Analysis (2013). Criminal Appeal No. 84 & 85 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/296/eng@2013-07-25

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