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Court of AppealDismissedCriminal Appeal No. 63 of 2014

Kamau v Republic (Criminal Appeal 63 of 2014) [2014] KECA 168 (KLR)

Court of Appeal of Kenya
17 December 2014
3,718 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 upheld a robbery conviction, confirming that a properly conducted identification parade is valid even when witnesses never described the suspect beforehand.

What this practically means

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Executive summary

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This was a second appeal by John Mwangi Kamau against the decision of the High Court at Nyeri (Sergon & Wakiaga, JJ.) dated 4th October 2012, which had upheld his conviction and death sentence for robbery with violence contrary to Section 296(2) of the Penal Code arising from a beer-distribution lorry robbery at Kagumo-ini Market on 24th June 2003, in which Kshs. 152,397.80 and a Motorola mobile phone were stolen. Before the Court of Appeal (Visram, Koome & Odek, JJ.A), the appellant challenged the visual identification evidence, the identification parade, alleged alteration of witness statements, and the adequacy of the first appellate court's re-evaluation. The Court reiterated that under Section 361 of the Criminal Procedure Code a second appeal is confined to matters of law and concurrent findings of fact cannot be disturbed absent a total absence of evidence. Following Nathan Kamau Mugwe v Republic, it held that the witnesses' failure to give the police a prior description of the assailants did not invalidate the identification parade; the question was one of weight. On the evidence of IP Francis and the parade form, the Court concurred with the two lower courts that the parade was properly conducted, noting that each witness independently identified the appellant as the pistol-wielding assailant, corroborating the identification. The daylight, unmasked and roughly fifteen-minute encounter supported positive identification, and the Turnbull cautions were satisfied. The Court found no evidence that witness statements had been altered, and held that there is no set format for re-evaluation of evidence, a first appellate court merely reaching the same conclusions as the trial court is not objectionable. The appeal was dismissed on 17th December 2014.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the concurrent findings of the two courts below that the appellant was positively identified were supported by evidence
  2. 2.Whether the identification parade was invalid because the witnesses did not give a prior description of the assailants
  3. 3.Whether the identification parade was properly conducted, including the use of the same parade members and similarity of members to the appellant
  4. 4.Whether the first appellate court merely rehashed the evidence instead of re-evaluating it
  5. 5.Whether the witnesses' statements had been altered to fix the appellant and whether the failure of the investigating officer to testify vitiated the conviction

Key legal issues

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01

Scope of a second appeal under Section 361 of the Criminal Procedure Code

Holding

The Court is restricted to matters of law and will not disturb concurrent findings of fact unless they are based on no evidence.

Reasoning

By dint of Section 361 of the Criminal Procedure Code, a second appeal deals only with points of law. Where the two courts below made concurrent findings that the appellant was positively identified, the Court could interfere only if satisfied there was no basis on the record for those findings. The test is whether there was any evidence on which the trial court could find as it did.

p. 3
02

Effect of the witnesses' failure to describe the assailants to the police before the identification parade

Holding

Failure to give a prior description does not invalidate the parade; the relevant consideration is the weight to attach to the identification evidence.

Reasoning

Relying on Nathan Kamau Mugwe v Republic, the Court held that a witness who cannot describe a suspect but would recognise him on seeing him again should not be deprived of a properly conducted parade. The police may also, through their own investigations, place a suspect on a parade without a prior description. The parade cannot be held invalid merely because the witnesses had not previously given a description of the suspect.

p. 5
03

Whether the identification parade was properly conducted

Holding

The parade was properly conducted; the evidence showed scrupulous fairness and the appellant raised no objection to its conduct.

Reasoning

IP Francis testified that the appellant was placed among eight members, the witnesses waited in a different room while the parade was prepared, each witness was called alone, positions were changed after each identification, and witnesses were separated afterwards to avoid influence. The identification parade form was on record, and the appellant never objected to the manner of conduct. Each witness identified the appellant as the assailant armed with the pistol, corroborating the identification.

p. 6
04

Reliability of visual identification in daylight robbery

Holding

The identification evidence was positive and free from error given the broad daylight, unmasked assailants, and the duration of the incident.

Reasoning

The witnesses testified the incident occurred around 3:00 p.m. in broad daylight, the assailants' faces were uncovered, and the robbery took about 15 minutes, allowing impressions of the assailants' physical attributes. Each witness explained the circumstances in which he observed the appellant holding the pistol. Given these favourable conditions and corroboration among three witnesses, the concurrent findings of positive identification were safe.

p. 6
05

Whether the first appellate court failed to re-evaluate the evidence and whether witness statements were altered

Holding

The allegation that the statements were altered was unsupported by evidence, and there is no set format for re-evaluation of evidence.

Reasoning

Having perused the record, the Court found no evidence supporting the claim that witnesses' statements had been altered. As to the rehash complaint, citing Okeno v R through David Njuguna Wairimu v Republic, the first appellate court may come to the same conclusions as the trial court provided it is clear it considered the evidence on the basis of the law. The trial court had the benefit of assessing the witnesses' demeanour.

p. 6

Legal principles established

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  • A second appeal is confined to points of law and the Court will not interfere with concurrent findings of fact unless based on no evidence
  • Failure by a witness to give a prior description of the suspect does not necessarily render an otherwise valid identification parade worthless; it goes to weight
  • A dock identification is generally worthless unless preceded by a properly conducted identification parade
  • An identification parade must be conducted with scrupulous fairness, with the suspect placed among at least eight persons of similar age, height, general appearance and class of life
  • There is no set format for re-evaluation of evidence by the first appellate court, and reaching the same conclusions as the trial court is not objectionable

Court orders

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  1. 1.The appeal is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Martha Karambu Koome
Martha KoomeJA
Currently serving
majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nyeri
H.C.CR.A No. 126 of 2005
Jurisdiction invoked
Second appeal under Section 361 of the Criminal Procedure Code, restricted to matters of law

Relief refused

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Quashing of the conviction and sentence upheld by the High Court

The Court found the identification evidence positive and free from error and the parade properly conducted

p. 6

Costs

No costs order recorded in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
p. 3Scope of second appeal
we do not think that failure to describe the person to be identified necessarily renders an otherwise valid parade worthless
p. 4Prior description and validity of identification parade
A dock identification is generally worthless and the court should not place much reliance on it unless this has been preceded by a properly conducted parade.
p. 4Dock identification
The parade must be conducted with scrupulous fairness, otherwise the value of the identification as evidence will be lessened or nullified
p. 5Fairness of identification parades
The upshot of the foregoing is that we find that the appeal herein lacks merit and is hereby dismissed.
p. 6Disposition - final orders

Issues in the judgment

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minor

The judgment contains an internal date inconsistency in the appellant's defence: he states he was arrested on 27th July, 2003, yet testifies that an identification parade was conducted on 4th July, 2003, and elsewhere the judgment records the parade as conducted before 27th June, 2003.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kamau v Republic (Criminal Appeal 63 of 2014) [2014] KECA 168 (KLR)", Case Analysis (2014). Criminal Appeal No. 63 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/168/eng@2014-12-17

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