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Court of AppealDismissedCriminal Appeal No. 369 of 2012· [2016] KECA 134 (KLR)

Robert Kariuki Wachiuri & another v Republic [2016] KECA 134 (KLR)

Court of Appeal of Kenya
17 November 2016
3,761 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 clear daylight identification of robbery suspects can sustain convictions even where identification parades are flawed.

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 Nakuru by Robert Kariuki Wachiuri and Timothy Gachichio Thiga against the confirmation by the High Court (Ouko and Omondi, JJ) of their convictions and death sentences for two counts of robbery with violence contrary to section 296(2) of the Penal Code, arising from robberies at Narok Township in June 2007. The 1st appellant complained of irregular identification parades and reliance on identification evidence through PW2; the 2nd appellant contended that proof of the offence was wanting in the absence of his identification in the parades. The court confined itself, as it must on a second appeal, to points of law, framing two issues: whether the first appellate court discharged its mandate judicially, and whether the visual identification of the appellants was free from error. Applying Karingo v Republic, Chamagong v Republic and Okeno v Republic, the court held the High Court judges properly re-evaluated the entire evidence. Although the first appellate court discounted the identification parade evidence because the parade officer was never called, the court held the visual identification reliable: the robberies occurred at about 3.00 p.m. in broad daylight, and PW2 and PW3 had considerable time with their attackers and gave clear descriptions. Relying on Muiruri & 2 Others v Republic, the court also held dock identification is not worthless if the court warns itself of the danger of mistaken identification. The 1st appellant's carjacking alibi was found implausible. The appeal was dismissed and the concurrent findings affirmed. The judgment is a single judgment of the whole court.

Key legal issues

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01

Duty of the first appellate court on appeal

Holding

The High Court judges properly discharged their mandate by fresh and exhaustive re-analysis and re-evaluation of the entire evidence, following Okeno v Republic.

Reasoning

The Court of Appeal examined the record and found that the learned judges of the first appellate court took a correct approach consistent with the settled duty to re-evaluate the whole evidence afresh, draw their own conclusions while allowing for the trial court's advantage of seeing and hearing the witnesses, before deciding whether to uphold the trial magistrate's convictions on the robbery charges.

p. 4
02

Reliability of visual identification where identification parade evidence was discounted

Holding

The discounting of the identification parade evidence did not vitiate the convictions because the visual identification of the appellants by PW1, PW2 and PW3 was free from error, the robberies occurring at about 3.00 p.m. in broad daylight with ample opportunity to observe.

Reasoning

The court weighed the circumstances favouring positive identification: the witnesses had considerable time with the attackers, described the events and the robbers' clothing to police, and the robberies were in broad daylight with no hooding. The court applied Maitanyi v Republic, Achieng v Republic and Mwaura v Republic, and held the first appellate court was alive to the special need for caution where identification is the sole basis of the case, yet was entitled to uphold the witnesses' evidence.

p. 5
03

Rejection of the 1st appellant's alibi of carjacking

Holding

The alibi that he was carjacked was not plausible and was displaced by the prosecution evidence, including his flight behaviour and failure to report the carjacking to police.

Reasoning

The 1st appellant admitted driving the escape vehicle KAW 871P into Narok but claimed he was carjacked and dumped. The court found it implausible that a prudent innocent victim would not report the carjacking to the nearest police station but instead telephone his employer and board a matatu to Nairobi, where he was flushed out at a road block wearing the clothing described by members of the public, sweating heavily.

p. 6

Legal principles established

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  • A second appellate court is confined to points of law and will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence.
  • Dock identification is not worthless per se; a court may base a conviction on it if satisfied the evidence must be true and if it duly warns itself of the danger of mistaken identification.
  • Where an identification parade is held, the officer who conducted it must be questioned about it; failing that, identification evidence may still be accepted if there is other supporting evidence.

Court orders

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  1. 1.The appeal is dismissed in its entirety; the convictions and sentences imposed by the two courts below are affirmed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Court of Appeal RulesRule 32(2)

Cases cited (13)

  • James Karani M'Ikombo versus Republic
    [2014] eKLR
  • Martin Oduor Lango & 2 Others versus Republic
    [2014] eKLR
  • Karingo versus Republic
    [1982] KLR 214
  • Chamagong versus Republic
    [1984] KLR 213
  • Okeno vs. Republic
    [1972] EA 32
  • Achieng v Republic
    [1981] KLR 175
  • Mwaura v. Republic
    [1987] KLR
  • Maitanyi versus Republic
    [1986] KLR 198
  • Ajode versus Republic
    [2004] 2KLR 81
  • Muiruri & 2 Others versus Republic
    [2002] KLR 274
  • Abdulla bin Wendo v. Rep
    (1953) 20 EACA 166
  • Roria v. Republic
    [1967] EA 583
  • Charles Maitanyi v. Republic
    (1986) 2 KAR 76
On appeal from
High Court of Kenya at Nakuru
Criminal Appeals No. 101 and 102 of 2010 (Consolidated)
Jurisdiction invoked
Second appeal under the Court of Appeal's appellate jurisdiction in criminal matters (judgment delivered under Rule 32(2) of the Court of Appeal Rules)

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, "Robert Kariuki Wachiuri & another v Republic [2016] KECA 134 (KLR)", Case Analysis (2016). Criminal Appeal No. 369 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/134/eng@2016-11-17

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