Abdirahman Sheikh Mohammed another v Republic [2017] KECA 550 (KLR)
The bottom line
#Kenya's Court of Appeal quashed one robbery conviction over a flawed identification parade, but let the other stand despite strong evidence.
What this practically means
#Executive summary
#Key legal issues
#Scope of a second appeal under Section 361 of the Criminal Procedure Code
The Court is confined to issues of law and will not disturb concurrent findings of fact unless based on no evidence or reached on a basis no reasonable tribunal would adopt.
The Court invoked Section 361 of the Criminal Procedure Code and adopted the statement in Karingo v Republic that a second appeal must be confined to points of law. Findings of fact tried and re-evaluated by the two courts below are final unless no evidence supports them. The Court therefore reviewed the evidence only to test whether the legal standards of identification and proof were met.
Applicability of Article 50 of the Constitution of Kenya, 2010 to a pre-2010 trial
Article 50 rights did not apply to a trial conducted and concluded before the 2010 Constitution came into force; the applicable fair-trial guarantee was Section 72 of the retired Constitution.
The trial was conducted and concluded on 10th March 2008, more than two years before the Constitution of Kenya, 2010 came into force. The Court held that Article 50 rights were not available in the retired Constitution in the elaborate way now set out, and that even under Section 72 of the retired Constitution a violation would require proof that statements were requested and denied, and the issue would have had to be raised on first appeal.
Legality of using the same members in identification parades for two accused persons
Using the same members of a parade to identify two accused persons contravenes the Police Force Standing Orders and vitiates the identification.
Counsel for the Republic conceded the 2nd appellant's appeal because the same parade members were used to identify both appellants, contrary to the Police Force Standing Orders, and because the complainant had identified the 2nd appellant by distinctive features (a silver tooth and a facial mark) that no other member possessed. The Court accepted the concession and quashed the 2nd appellant's conviction despite other strong evidence.
Sufficiency and admissibility of expert reports produced by police officers
A ballistic report and blood sample report produced by a police officer rather than their makers were inadmissible under Section 33 of the Evidence Act and were properly expunged by the High Court.
The trial magistrate admitted the ballistic and blood sample reports, but the High Court on first appeal rejected them because they were produced by unqualified persons and not by their makers. The Court held that in view of Section 33 of the Evidence Act the reports were inadmissible, but found that ample visual identification evidence against the 1st appellant remained unaffected by their exclusion.
Legal principles established
#- On a second appeal, the Court of Appeal 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.
- A complaint about failure to furnish witness statements must be supported by proof that the statements were requested and denied, and must be raised on first appeal; it is not available for the first time on second appeal.
- Where a fundamental violation of an accused's rights occurs, such as a defective identification parade, the accused is entitled to the benefit of that violation notwithstanding other strong evidence.
Court orders
#- 1.Appeal of the 2nd appellant allowed; his conviction quashed and he set free forthwith unless otherwise lawfully held
- 2.Appeal of the 1st appellant dismissed
- On appeal from
- High Court of Kenya at Nairobi
- HC. CR.A. 184 of 2011
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdirahman Sheikh Mohammed another v Republic [2017] KECA 550 (KLR)", Case Analysis (2017). Criminal Appeal No. 157 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/550/eng@2017-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.