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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 248 of 2012· [2014] KECA 24 (KLR)

D A M & 2 others v Republic

Court of Appeal
9 May 2014
4,137 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal quashed three robbery convictions because shoddy identification parades and an invalid confession could not reliably prove guilt.

What this practically means

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Executive summary

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This second appeal from the High Court at Kakamega concerned the conviction of three appellants on four counts of robbery with violence and sentences of death. The Court of Appeal identified four clusters of grounds: failure of the High Court to re-evaluate the evidence, defective identification, failure to call essential witnesses, and the propriety of the death sentence on an appellant who may have been a minor. The State conceded the appeal on identification, first appellate review, recent possession and admissibility. The court held that the identification parades were improperly conducted because the participants were not of similar age, height and general appearance as the appellants, contrary to the Police Force Standing Orders, and that none of the complainants had given a description of the attackers to the police before the parades. The resulting identifications amounted to mere dock identification, worthless where the complainants did not know the appellants. The court further found that the High Court failed in its statutory duty to re-evaluate, re-analyse and review the trial evidence afresh and draw its own conclusions. It also held that evidence of arrests and recoveries flowing from a confession extracted by a police constable, unqualified to take such statements, was inadmissible following the repeal of section 31 of the Evidence Act. On sentence, the record suggested the 1st appellant may have been under 18; the court found that he could not then have been sentenced to death but, the conviction having been quashed, the issue was moot. The appeal was allowed: the convictions were quashed, the sentences set aside, and each appellant set at liberty unless otherwise lawfully held. No costs order is recorded.

Key legal issues

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01

Identification and identification parades

Holding

The parades were improperly conducted (participants not of similar age, height, general appearance) and witnesses did not describe the attackers to police, so the identification was not positive and amounted to worthless dock identification.

Reasoning

The law requires that a witness give a description of the suspect to the police before a parade, and that the parade comply with Police Force Standing Orders. Here no first descriptions were given, the OB was unavailable, and parade members were of mixed physique, so identification could not be free from the possibility of error.

p. 6
02

Duty of the first appellate court

Holding

The High Court failed to re-evaluate the evidence afresh as required by law.

Reasoning

The High Court merely endorsed the trial court's findings instead of independently analysing the evidence, bearing in mind that it did not see or hear the witnesses. Had it directed itself to the defects in identification, it might have reached a different conclusion.

p. 6
03

Admissibility of confession-derived evidence

Holding

Evidence of arrests and recoveries flowing from a confession extracted by a police constable, who was not qualified to take such statements, was inadmissible and should not have been relied upon to convict.

Reasoning

Section 31 of the Evidence Act having been repealed, courts cannot act on evidence of items recovered through a confession. PC Tamba, a constable, extracted what amounted to a confession from the 1st appellant; without it, the 2nd and 3rd appellants would probably not have been arrested.

p. 7
04

Sentence of a possibly underage appellant

Holding

The 1st appellant may have been under 18 and could not have been sentenced to death; the issue became moot on quashing of conviction, but the right to legal representation under the Children Act may have been compromised.

Reasoning

The record showed the 1st appellant stated he was 17 and escaped from a juvenile remand home, yet neither the trial court nor the High Court considered his age. Had he been a minor, detention at the President's pleasure under section 25(2) of the Penal Code would have applied instead of death.

p. 7

Legal principles established

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  • An identification parade has probative value only if the witness first gave a description of the suspect to the police and the parade was properly conducted.
  • Where an identification parade is defective, the resulting identification is mere dock identification which is worthless where the complainants did not know the accused.
  • The first appellate court must re-evaluate, re-analyse and review the evidence afresh and draw its own conclusions.
  • Following the repeal of section 31 of the Evidence Act, courts can no longer act on evidence of items recovered as a result of a confession extracted from an accused person.

Court orders

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  1. 1.The conviction of each appellant is quashed
  2. 2.The sentences in respect of the appellants are set aside
  3. 3.Each appellant is set at liberty unless otherwise lawfully held
On appeal from
High Court of Kenya at Kakamega
H.C.CR.A. Nos. 102, 103 & 104 of 2010
Jurisdiction invoked
Second appeal under the Criminal Procedure Code against conviction and sentence

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, "D A M & 2 others v Republic", Case Analysis (2014). Criminal Appeal No. 248 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/24/eng@2014-05-09

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