Peter Kariuki Kimani & 1 other v Republic
The bottom line
#Kenya's Court of Appeal upheld life sentences for attempted robbery, confirming that night identifications by lamp light can be reliable and no demand for property is needed.
What this practically means
#Executive summary
#Key legal issues
#Adequacy of lighting for night identification
The solar bulb and pressure lamp provided adequate lighting; the appellants moving away when solar light reflected outside showed visibility was sufficient for identification
Both PW1 and PW2 testified the light came from a solar bulb and a pressure lamp. PW2 saw the second appellant's face for about five minutes. The inference drawn from the intruders moving away to avoid the reflected solar light was that the light was intense enough for identification. Contradiction on trouser colour was not material given other corroborative identification evidence including the leather jacket and the identification parade.
Validity of the identification parade
The parade was conducted fairly and in accordance with the laid down procedures and was not challenged
PW7 testified that two parades were conducted, each with eight persons of similar height and characteristics to the appellant, and identification was by touching. The court examined the record and was satisfied the parade was fair; the appellants did not challenge its conduct. Description given by PW2 of the gunman was considered.
Ingredients of attempted robbery with violence
Demand for property need not be proved; actus reus and mens rea were established
A charge under section 297(2) is proved where a person assaults another with intent to steal and uses or threatens violence, and is armed with a dangerous weapon or in company with others or wounds the victim. Entry into the dwelling without permission, ordering the complainants to the main house, carrying a gun and firing shots, and the struggle established both the actus reus and a presumption of intent to steal.
Legal principles established
#- On a second appeal, the Court of Appeal concerns itself only with matters of law and confines itself to whether the first appellate court discharged its duty to re-evaluate the evidence
- Evidence of identification at night must be tested with the greatest care using the Turnbull guidelines and must be absolutely watertight to justify conviction
- In assessing identification by light at night, the court must ascertain the nature, size and position of the light relative to the suspect
- A demand for property is not a necessary ingredient of attempted robbery with violence under section 297(2) of the Penal Code; assault with intent to steal coupled with actual or threatened violence suffices
- The prosecution cannot discharge its burden by requiring an accused person to explain his presence at the scene of the crime; doing so shifts the burden of proof
- Evidence of an accused person naming a co-accused is of the weakest kind but is admissible and may be taken into account under section 32(1) of the Evidence Act
- Evidence of identification should be considered together with evidence of arrest
Court orders
#- 1.The appeal by the appellants is dismissed
- On appeal from
- High Court of Kenya at Nyeri
- H.C.CR.A. No. 232 of 2008
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code; appeal lies on matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kariuki Kimani & 1 other v Republic", Case Analysis (2013). Criminal Appeal 509 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/316/eng@2013-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.