D A M & 2 others v Republic
The bottom line
#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
#Executive summary
#Key legal issues
#Identification and identification parades
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.
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.
Duty of the first appellate court
The High Court failed to re-evaluate the evidence afresh as required by law.
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.
Admissibility of confession-derived evidence
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.
Section 31 of the Evidence Act having been repealed, courts cannot act on evidence of items recovered through a confession.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.
Sentence of a possibly underage appellant
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.
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.
Legal principles established
#- 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
#- 1.The conviction of each appellant is quashed
- 2.The sentences in respect of the appellants are set aside
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.