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Court of AppealDismissedCriminal Appeal No 240 of 2011· [2014] KECA 653 (KLR)

Haro Guffil Jillo v Republic [2014] KECA 653 (KLR)

Court of Appeal of Kenya
30 April 2014
AVAlnashir VisramMartha Karambu KoomeMartha KoomeOTOtieno-Odek
3,304 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 sworn testimony by child witnesses can sustain a murder conviction without corroboration, dismissing the appeal against a death sentence.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (sitting at Meru), comprising Visram, Koome and Otieno-Odek, JJ.A., in a single judgment of the court, dismissed the appellant's first appeal against his conviction for the murder of Lillian Garawale and the death sentence imposed by Lesiit, J. of the High Court at Meru on 7th July 2011. The appellant had been convicted on the evidence of three child eyewitnesses aged 17, 12 and 11 who identified him at an identification parade following a daylight bandit attack near Marsabit in which three youths were shot dead. The appellant argued that identification evidence from minors required corroboration, that the parade was procedurally flawed for want of a Borana interpreter, that eyewitness descriptions were materially inconsistent, that inadmissible evidence of a prior conviction prejudiced the trial, and that his alibi was ignored. The Court re-evaluated the evidence afresh as required on a first appeal (Okeno v Republic) and held that the 17-year-old was not a child of tender years and that the younger witnesses, having passed voire dire and given sworn testimony, were competent witnesses whose evidence was admissible under section 151 of the Criminal Procedure Code. The parade was properly conducted; the description inconsistencies were minor; the prior-conviction evidence was unnecessary but not fatal since the identification evidence stood independently; and the alibi was properly considered and rejected. The conviction was found safe and the appeal was dismissed in its entirety.

Key legal issues

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01

Corroboration of identification evidence by minor witnesses

Holding

A 17-year-old witness is not a child of tender years; where minors give sworn evidence after a proper voire dire, their evidence is admissible without the unsworn-evidence corroboration safeguard, though the prevailing circumstances of identification must still be tested.

Reasoning

The Court held the true purpose of a voire dire is to establish whether a child understands the nature of the oath and the duty to tell the truth. PW3 and PW4 were subjected to voire dire, found competent, sworn, and cross-examined. Section 19 safeguards for unsworn evidence of children of tender years did not apply since they gave sworn evidence; the Children Act defines a child of tender years as below 10 years.

p. 5
02

Identification parade procedure

Holding

The parade was properly conducted; the appellant failed to request a Borana interpreter at the time and the parade involved physical, not voice, identification.

Reasoning

The Court re-evaluated the evidence and found nothing untoward in the parade. The parade form showed the appellant declined a friend or solicitor; if he wanted a Boran interpreter he should have requested it then. The attack occurred in broad daylight and each witness described their vantage point.

p. 4
03

Admission of evidence of a previous conviction

Holding

The evidence of the appellant's conviction in Marsabit Criminal Case No 37 of 2005 was unnecessary and inadmissible for this trial, but its admission was not fatal because cogent identification evidence independently supported the conviction.

Reasoning

The Court agreed the AK 47 rifle from the earlier case was never subjected to ballistic examination linking it to this offence, so that evidence should not have been relied on. However, even disregarding it, the identification by three eyewitnesses remained cogent, so the conviction stood.

p. 5
04

Alibi defence

Holding

The alibi defence was appropriately considered and rejected as it did not create any doubt in the face of overwhelming prosecution evidence.

Reasoning

The trial judge correctly directed himself on alibi law citing Sebyala, that an accused need only create doubt. The Court found the prosecution case, based on three eyewitnesses who identified the appellant at a properly conducted parade, was so strong that the alibi did not shake it.

p. 4

Legal principles established

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  • On a first appeal, the Court of Appeal must revisit the evidence afresh, analyse and evaluate it and reach its own conclusion, while allowing for the trial judge's advantage of observing the witnesses.
  • Where the only evidence against a defendant is identification or recognition evidence, the trial court must examine it carefully and be satisfied the circumstances were favourable and free from possibility of error.
  • The Court of Appeal will not normally interfere with findings of fact by the trial court unless they are based on no evidence, a misapprehension of the evidence, or wrong principles.
  • Sworn evidence of a witness is admissible by virtue of section 151 of the Criminal Procedure Code; the unsworn-evidence safeguards for children of tender years apply only where the court takes unsworn evidence.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The conviction and sentence imposed by the trial court stand

Authorities

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Legislation

  • Penal CodeSections 203, 204
  • Evidence ActSections 57, 58
  • Evidence ActSection 124
  • Evidence ActSection 19
  • Oaths and Declarations ActSection 19
  • Criminal Procedure CodeSection 201(1)
  • Criminal Procedure CodeSection 151
  • Children ActDefinition of child of tender years

Cases cited (12)

  • ABDALLA BIN WENDOH & ANOTHER V REGINA
    (1953) EACA 166
  • MAITANYI V REPUBLIC
    (1986) KLR 196
  • R vs. Turnbul and Others
    (1976) 3 ALL ER 549
  • Wamunga vs. Republic
    (1989) KLR 424
  • Okeno vs Republic
    (1972) EA 32
  • UGANDA V. SEBYALA & OTHERS
    [1969] EA 204
  • TANZANIA CRIMINAL APPEAL, 12 D 68
  • Republic -vs- Peter Kiriga Kiune
    Criminal Appeal 77 of 1982 (unreported)
  • Johnson Muiruri -vs- Republic
    [1983] KLR 445
  • Macharia -vs- Republic
    [1976-80] 1 KLR 260
  • Chemagong vs Republic
    (1984) KLR 611
  • Kiarie vs Republic
    (1984) KLR 739
On appeal from
High Court of Kenya at Meru
H.C. CR. C. No. 33 of 2005
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence from the High Court in a murder trial (Criminal Appeal 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, "Haro Guffil Jillo v Republic [2014] KECA 653 (KLR)", Case Analysis (2014). Criminal Appeal No 240 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/653/eng@2014-04-30

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