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Court of AppealDismissedCriminal Appeal No. 637 of 2010· [2014] KECA 660 (KLR)

Samuel Githinji Kimaru & another v Republic [2014] KECA 660 (KLR)

Court of Appeal
20 March 2014
2,598 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 threw out a flawed police identification parade but still upheld a robbery conviction based on the victim's own detailed sighting of the attacker.

What this practically means

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Executive summary

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This was a second appeal by Samuel Githinji Kimaru against conviction and sentence to death for robbery with violence contrary to Section 296(2) of the Penal Code, arising from the robbery of a taxi driver Maurice Mwita Nyabagosi at Nakuru on 27 July 2008. The second appellant, Peter Mwangi Wanjiru, died before the appeal was heard, leaving the first appellant as the only appellant. The first appeal to the High Court (Maraga & Emukule, JJ.) had been dismissed. Counsel for the appellant challenged the identification parade, alleged mistaken identity, questioned the absence of a voice expert, and attacked conviction on the evidence of a single identifying witness. The State maintained that the complainant had ample opportunity to identify the appellant. The Court of Appeal, confined to points of law on a second appeal, identified two issues: the propriety of the identification parade and the sufficiency of the evidence of identification. On the first issue, the court found the parade flawed because the investigating officer conducted it, and held that the High Court erred in upholding identification based on that parade. However, on the evidence of visual identification, the court held that the complainant saw the appellant on three occasions over an extended period from 8.00 pm to 1.00 am, including during two discussions at Akamba Office, so his identification was positive and free from error. The court distinguished Martin Mukaria v Republic, relied on by the appellant, and noted that the appellant was never convicted on Count III since the trial magistrate had acquitted all accused on that count. The appeal was dismissed in its entirety, the conviction and sentence being upheld. No costs order was made in the judgment.

Key legal issues

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01

Validity of the identification parade

Holding

The parade was improperly conducted by an investigating officer and its results could not stand.

Reasoning

Inspector Albanius Kimango, who conducted the parade, was simultaneously one of the investigating officers in the case. The court held that an investigating officer should not conduct an identification parade. Because the parade breached the laid-down procedures, its results could not be relied upon, and the High Court judges erred in upholding identification based on that parade.

p. 3
02

Visual identification of a stranger at night by a single witness

Holding

Notwithstanding the flawed parade, the complainant's visual identification of the appellant was positive and free from error, sustaining the conviction.

Reasoning

The complainant did not know the appellant, so this was identification of a stranger, not recognition. The offence occurred at 8.00 pm in darkness, requiring careful application of the Turnbull guidelines. However, the complainant saw the appellant on three occasions: two discussions at Akamba Office and at the fuelled petrol station, over a period from 8.00 pm to 1.00 am, giving adequate time and opportunity for positive identification.

p. 4
03

Distinguishing Martin Mukaria v Republic

Holding

The Martin Mukaria case relied on by the appellant was distinguishable on its facts.

Reasoning

In Martin Mukaria the complainant was attacked from behind and the offence lasted less than five minutes, whereas in the present case there was a series of events over a much longer period during which the complainant and appellant were together continuously, allowing ample opportunity for identification.

p. 4
04

Conviction on Count III (theft of Kshs. 19,000)

Holding

The appellant was never convicted on Count III; the trial magistrate acquitted all accused on that count.

Reasoning

The appellant's submission that the High Court erred in upholding a conviction on Count III was factually mistaken, as the record showed the trial magistrate acquitted all accused persons on that count since no witness proved the theft from Esther Mwita.

p. 4

Legal principles established

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  • On a second appeal the Court of Appeal is confined to matters of law only.
  • An investigating officer should not conduct an identification parade; a parade conducted in breach of the laid-down procedures is flawed and its results cannot stand.
  • Evidence of identification at night must be tested with the greatest care using the Turnbull guidelines and must be watertight to justify conviction.
  • A fact may be proved by the testimony of a single identifying witness if the conditions for identification are favourable.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Conviction and sentence of the appellant upheld

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Firearms Act, Cap 114 Laws of KenyaSection 4(1) as read with Section 4(3)
  • Police Force Standing OrdersChapter 46

Cases cited (9)

  • Martin Mukaria - v- Republic
    Criminal Appeal No. 462 of 2010
  • Njoroge - v- Republic
    (1982) KLR 388
  • Anjononi & others -vs- Republic
    (1976-80) 1 KLR 1566
  • Republic - v- Turnbull
    (1976) 3 All ER 549
  • Nzaro -v- Republic
    1991 KAR 212
  • Kiarie - v- Republic
    1984 KLR 739
  • Maitanyi - v- Republic
    1986 KLR 198
  • Maitanyi - v- Republic
    (1986) KLR 200
  • Abdulla Bin Wendo & Another - v- Reg.
    (1953) 20 EACA 166
On appeal from
High Court at Nakuru
H.C.C. CR A. No. 56 & 57 of 2009
Jurisdiction invoked
Second appellate jurisdiction over a criminal appeal from the High Court, confined to points of law

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, "Samuel Githinji Kimaru & another v Republic [2014] KECA 660 (KLR)", Case Analysis (2014). Criminal Appeal No. 637 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/660/eng@2014-03-20

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