Stephen Kihunge Kariuki & another v Republic [2016] KECA 169 (KLR)
The bottom line
#Kenya's Court of Appeal freed two men convicted of attempted robbery after finding eyewitness identification doubts made the convictions unsafe.
What this practically means
#Executive summary
#Key legal issues
#Standard for interference with concurrent findings of fact on second appeal
The second appellate court may depart from concurrent findings of fact where there are compelling reasons; the court answered in the affirmative because the identification evidence was riddled with discrepancies.
As a second appeal, only matters of law arise under Section 361 of the Criminal Procedure Code. The court respects concurrent findings of fact but may interfere where findings are bad in law, based on want of evidence, misapprehension of evidence, or findings no reasonable tribunal would make. Here, contradictions in the number of assailants and descriptions not in first reports supplied compelling reasons to depart.
Reliability of visual identification evidence
Evidence of visual identification must be examined with the greatest care; where the case depends wholly or mainly on identification, the court must warn itself of the special need for caution before convicting.
Relying on Wamunga v Republic, the court stressed that visual identification can cause miscarriages of justice. The discrepancies here - three versus two assailants in Gerishon's account, Edwin's written statement mentioning one man, descriptions of flared ears and clothing not recorded in first reports - left lingering doubts as to identity, so identification was not proved beyond reasonable doubt and the convictions were unsafe.
Purpose and value of a properly conducted identification parade
An identification parade is of great value only if properly conducted; where a suspect is identified only at an improperly conducted parade, the witness cannot reliably dissociate the dock identification from the parade.
Citing Njihia v Republic, the court framed the purpose of identification parades. Where the parade is well conducted with an independent person protecting the suspect's interests, the resulting evidence is of great value; but a badly conducted parade undermines the complainant's ability to give reliable identification evidence in court unless there is clear identification apart from the parade.
Lawfulness of the sentence of 20 years for attempted robbery with violence
Section 389 of the Penal Code has not been repealed and remains in force, but the proper sentence for attempted robbery with violence under Section 297(2) is death.
Counsel for the State had argued Section 389 was repealed in February 2010, rendering Boniface Khisa per incuriam, and urged reinstatement of the death sentence citing Mwaura. The court stated straightaway that Section 389 remains in force, yet held the proper sentence for attempted robbery with violence is death. Having nonetheless quashed the convictions, it set aside the sentences entirely.
Legal principles established
#- On a second appeal the Court of Appeal considers issues of law only and will not depart from concurrent findings of fact unless persuaded there are compelling reasons, such as findings based on no evidence, misapprehension of evidence, or findings no reasonable tribunal could reach.
- Where identification evidence is the basis of conviction, the identity of the perpetrator must be established beyond reasonable doubt; discrepancies in number of assailants, descriptions not in first reports, and reliance on features not recorded may leave lingering doubts rendering a conviction unsafe.
Court orders
#- 1.The convictions of both appellants are quashed
- 2.The sentences imposed are set aside
- 3.The appellants shall be set at liberty forthwith unless otherwise lawfully held
- On appeal from
- High Court of Kenya at Nakuru
- H.C.CR.A No 58 & 60 of 2010
- Jurisdiction invoked
- Second appeal under Section 361 of the Criminal Procedure Code (issues of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Kihunge Kariuki & another v Republic [2016] KECA 169 (KLR)", Case Analysis (2016). Criminal Appeal No 289 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/169/eng@2016-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.