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Court of AppealAllowedCriminal Appeal No. 300 of 2010· [2014] KECA 301 (KLR)

Kennedy Orenge Wamuremba & 2 others v Republic

Court of Appeal of Kenya
23 October 2014
4,404 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 quashed three robbery convictions and death sentences because the witnesses' identifications were never properly verified.

What this practically means

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Executive summary

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This was a second appeal before the Court of Appeal (Visram, Koome & Odek, JJ.A) against the dismissal by the High Court at Nakuru (Maraga & Emukule, JJ.) of the appellants' first appeal against convictions for three counts of robbery with violence and death sentences imposed by the Senior Resident Magistrate's Court at Narok, arising from robberies at Olmusakwa trading centre on 12th August 2006. By dint of Section 361 of the Criminal Procedure Code, the Court was confined to matters of law. The State conceded the appeal, submitting that identification of the 1st and 3rd appellants was improper and that recognition of the 2nd appellant by a minor was insufficient. The Court held that the convictions rested entirely on visual identification, no stolen items having been recovered. The only evidence against the 1st appellant was single-witness identification by torchlight without any description given to the police in the initial report, rendering it untestable dock identification. The 2nd appellant was identified solely by a 14-year-old witness upon whom no voire dire examination was conducted, so his evidence had no evidentiary value. The 3rd appellant's recognition and identification were similarly untested, the alleged descriptions not appearing in the initial reports. The Court allowed the appeal, quashed the convictions, set aside the death sentences, and ordered the appellants set at liberty unless otherwise lawfully held. The judgment reaffirms binding principles on the care required in acting on visual identification evidence, the necessity of initial descriptions and identification parades for strangers, and the mandatory voire dire examination of child witnesses.

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 interfere with concurrent findings of fact unless they are based on no evidence, a misapprehension of the evidence, or wrong principles.

Reasoning

Relying on Mwita v R and Kaingo v R, the Court reaffirmed that on second appeal the test is whether there was any evidence on which the trial court could find as it did. Since the two courts below made concurrent findings that the appellants were identified, the only question for the Court was whether the identification was proper and safe to sustain the convictions.

p. 4
02

Identification of the 1st appellant by a single witness without an initial description to the police

Holding

The identification of the 1st appellant was not proper and safe to justify his conviction because there was no way of testing the accuracy of the identifying witness's identification.

Reasoning

The only evidence against the 1st appellant came from Janet, who claimed identification by torchlight. The investigating officer testified that no description of the 1st appellant was recorded in the initial report; the missing-tooth description appeared only in a further statement recorded after his arrest. The description given to the arresting witness differed from that given in evidence, raising doubt whether the description was based on post-arrest observation. Applying Maitanyi and the dock-identification principle, the identification could not be tested and was unsafe.

p. 6
03

Evidentiary value of a minor's evidence taken without voire dire examination

Holding

Daniel, a 14-year-old witness, was not subjected to voire dire examination; his evidence therefore had no evidential value and could not sustain the 2nd appellant's conviction.

Reasoning

Section 19 of the Oaths and Statutory Declarations Act requires a voire dire examination before receiving a child's evidence to determine understanding of the oath or sufficient intelligence and appreciation of the duty to tell the truth. It was undisputed that Daniel was 14 and that no voire dire was conducted. Following Cleophas Ochieng Otieno and Kinyua v R, the Court held the untested evidence of the child had no evidentiary value, so there was no positive recognition or identification of the 2nd appellant.

04

Identification and recognition of the 3rd appellant

Holding

Neither James's recognition nor Janet's identification of the 3rd appellant was positive, as neither description nor terms of the description relied on for arrest were established by evidence.

Reasoning

James, though claiming the 3rd appellant was a known customer, never gave a description to the police in his initial report and did not lead police to his arrest, undermining claimed recognition. Janet's alleged description was not recorded in her initial report, and Sempoi, who testified the arrest followed Janet's description, gave no details of it. Applying Maitanyi and Simiyu, the Court found the identification was not positive enough to warrant conviction.

p. 7

Legal principles established

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  • A second appeal is confined to points of law and an appellate court will not interfere with concurrent findings of fact of the two courts below unless based on no evidence, a misapprehension of the evidence, or wrong principles.
  • Evidence of identification must be scrutinized carefully and acted upon only if the identification is positive and free from the possibility of error.
  • Identification of a stranger not followed by a description given to the police and a properly conducted identification parade amounts to dock identification, which may be worthless.
  • A child witness whose ability to tell the truth was never tested by a voire dire examination is not a competent witness and the evidence has no evidentiary value.

Court orders

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  1. 1.Appeal allowed
  2. 2.Convictions of the three appellants on all three counts of robbery with violence quashed
  3. 3.Sentences of death set aside
  4. 4.Appellants to be set at liberty unless otherwise lawfully held
On appeal from
High Court of Kenya at Nakuru
H.C.CR.A No. 142 of 2008
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law only)

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, "Kennedy Orenge Wamuremba & 2 others v Republic", Case Analysis (2014). Criminal Appeal No. 300 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/301/eng@2014-10-23

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