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Court of AppealDismissedCriminal Appeal No. 49 of 2009· [2014] KECA 51 (KLR)

Akim Azed Wakoli & 2 others v REPUBLlC

Court of Appeal of Kenya
13 June 2014
OOOnyango OtienoFAF. AzangalalaKMK. M'Inoti
2,721 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that fingerprint evidence found at a robbery scene, with no innocent explanation, is enough to convict.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Kisumu by three men convicted of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death by the Principal Magistrate's Court at Siaya. The third appellant was separately acquitted of handling stolen goods. Their consolidated first appeals to the High Court (Mwera and Karanja, JJ.) were dismissed on 24th February 2009, prompting the present appeal. The appeal raised a single issue: identification of the appellants, in two limbs. On the first limb, visual identification at the scene and in identification parades, the courts below had consistently rejected that evidence as inconsistent and unreliable, and this Court declined to disturb it. The decisive limb was identification through fingerprint evidence. The trial court convicted solely on prints lifted from the rear door, store door, window panes and the complainant's motor vehicle by Corporal Ongwenyi and matched to each appellant by a gazetted fingerprints expert, who found sixteen matching ridge characteristics per appellant. The Court held this was circumstantial evidence satisfying the three tests in Abanga alias Onyango v Republic, that fingerprints are an infallible and scientifically settled means of identification warranting judicial notice, and that the appellants' unexplained presence at the scene hours after the robbery left no room for accidental contact, adopting the reasoning in Nazir Ahmed v R and following People v Jennings. It further held that the absence of a report on the elimination fingerprints of the complainant's household could not impeach the expert's report on the appellants' prints. Finding no basis to interfere with the concurrent findings of the two courts below, the Court dismissed the appeal in its entirety on 13th June 2014, leaving the convictions and sentences standing.

Key legal issues

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01

Sufficiency and reliability of fingerprint evidence as a means of identification for conviction

Holding

Fingerprint impressions found at the locus in quo shortly after the robbery, matched to each appellant with sixteen matching ridge characteristics, were safe evidence on which to convict; ridge patterns are unique and permanent, facts subject to judicial notice.

Reasoning

The court accepted fingerprinting as scientifically settled since People v Jennings (1911) and applied in Kenya since Nazir Ahmed. The prints were found in the very places the robbers had passed, only hours after the robbery, and the appellants offered no innocent explanation as required under section 111 of the Evidence Act, so presence at the scene was irresistibly established.

p. 4
02

Fingerprint identification as circumstantial evidence subject to the Abanga tests

Holding

The evidence was circumstantial; the unexplained presence of the appellants' fingerprints at the scene formed a complete chain pointing to their guilt and no one else.

Reasoning

The court adopted the three-part Abanga test for circumstantial evidence: the circumstances must be cogently established, definitely point to guilt, and cumulatively exclude any other rational conclusion. Matching fingerprints in multiple locations, unexplained innocence, satisfied the test, adopting the reasoning in Nazir Ahmed that accidental contact did not warrant consideration.

p. 5
03

Effect of absence of elimination-fingerprint report for PW1, PW2 and PW3

Holding

The omission did not impeach the expert's report on the appellants' prints; elimination prints served only to exclude legitimate occupants whose presence was not in issue.

Reasoning

The court held the purpose of taking the occupants' fingerprints was purely eliminatory and their presence at their own home was innocent and undisputed. The real question was whether the appellants were at the scene, which the expert evidence answered, so the missing elimination report was immaterial.

p. 5
04

Rejection of visual identification and identification parade evidence

Holding

Both courts below properly rejected the visual identification evidence as inconsistent, contradictory and unsafe; the appeal rested solely on the fingerprint evidence.

Reasoning

The trial magistrate found PW2 and PW3 could not identify the robbers, rendering the identification parades useless; the first appellate court agreed that favourable conditions and adequate opportunity for identification were not established. This Court saw no need to disturb that finding.

p. 3

Legal principles established

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  • Where a case rests entirely on circumstantial evidence, the three Abanga tests must be satisfied before an inference of guilt may be drawn
  • Fingerprint evidence matching an accused's prints found at the scene shortly after the offence, with no innocent explanation, is safe evidence upon which to found a conviction
  • The absence of a report on elimination fingerprints of persons legitimately present at the scene cannot impeach a report establishing the accused's fingerprints at the scene
  • An appellate court will not interfere with concurrent findings of fact by the two courts below absent a demonstrated basis for interference

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Convictions and sentences imposed by the trial court and upheld by the High Court remain in force
On appeal from
High Court of Kenya
H.C. Cr. App. Nos. 17, 18 & 19 of 2008
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court sitting on appeal under criminal appellate jurisdiction

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, "Akim Azed Wakoli & 2 others v REPUBLlC", Case Analysis (2014). Criminal Appeal No. 49 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/51/eng@2014-06-13

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