Simiyu & 5 others v Republic (Criminal Appeal 33 & 34 of 2004 (Consolidated)) [2005] KECA 342 (KLR) (18 February 2005) David Masinde Simiyu & another v Republic Neutral citation: [2005] KECA 342 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT ELDORET CRIMINAL APPEAL 33 & 34 OF 2004 (CONSOLIDATED) PK TUNOI, PN WAKI & JWO OTIENO, JJA FEBRUARY 18, 2005 BETWEEN DAVID MASINDE SIMIYU .............................................................. 1ST APPELLANT ANTHONY WEKESA SIMIYU & 4 OTHERS .............................. 2ND APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (Appeal from a judgment of the High Court of Kenya at Kitale (Gacheche, J and Dulu Ag J) dated 22nd January, 2004 in HCCRA Nos 24 and 25 of 2002) 1. David Masinde Simiyu and Anthony Wekesa Simiyu, the appellants, with four others, were jointly convicted by the Senior Resident Magistrate, Kitale, on two counts of robbery with violence contrary to section 296 (1) of the Penal Code and the appellants were sentenced to seven (7) years imprisonment together with eight (8) stokes of the cane on each count the sentences to be served concurrently. The appellants were also placed under police supervision for a period of ve (5) years as is mandatorily required by section 344 (A) of the Criminal Procedure Code. Their rst appeals to the High Court of Kenya at Kitale (Gacheche, J and Dulu, Ag J) were dismissed on 22nd January, 2004 but their convictions under section 296 (1) of the Penal Code were set aside and substituted with convictions under section 296 (2) of the Penal Code and the sentences subsequent thereto were enhanced to death penalty. That verdict of the Superior Court has triggered this appeal. 2. The facts presented by the prosecution may briey be stated thus. During the night of 7th and 8th April, 2001, a group of about twenty people broke into the one roomed house of tire complainant Esther Wamalwa (PW1) at Nakhosi Farm, Trans Nzoia. They smashed the door with a huge stone as a consequence of which some members of the gang fell into the room as the door gave in. The room was lit with a lantern lamp and there was moonlight outside. PW 1 was in the room together with Anna Nasike (PW2 and a child. PW1 testied that she was able to recognize the appellants and three others https://new.kenyalaw.org/akn/ke/judgment/keca/2005/342/eng@2005-02-18 1
page 1 of 3
as they were her immediate neighbours. She stated that tire appellants were armed with pangas and axes. They did not attack her but they left soon after breaking into her room. As they retreated they threatened to return and nish her. When the gang left PW 1 and PW2 together with the child went to the house of PWl’s children nearby to seek refuge. However, later at about 12.30 am the same gang arrived and thoroughly beat them up inicting serious injuries on them. 3. At about midnight during the same night a gang of thugs numbering about ten carried out another attack in the house of Edward Waliaula (PW3). The gang had torches and PW3 claimed that he could identify the two appellants among odiers through torch lights. PW3 was injured and robbed of a bicycle and one bag of maize. He, too, claimed to have identied the appellants as members of the gang. 4. The attacks were reported to Kitale Police Station and after a brief investigation the appellants and four others were arrested. In her testimony before the trial court PW1 stated: “ I know accused 4 (1st appellant) he used to work for me His house is ten paces from my house. Accused’s house faces mine. Accused’s house is in my compound". and “ All the accuseds are my neighbours. They had invaded the land of my late husband”. Accused 6th (2nd appellant) ...used to work for me ... he cut me on the right hand”. 5. Though PW1 and PW3 alleged in their testimony that they recognized the appellants since they were their immediate neighbours, they did not mention their names to the police. PW1 testied: “ I told the police I recognized the people. I did not mention their names ”. 6. When put to the defence the appellants denied the commission of the oence and maintained that they were arrested for nothing. 7. It is trite that it is the duty of the rst appellate court to reconsider the evidence, evaluate it and draw its own conclusions in order to satisfy itself that there is no failure of justice. It is not enough for the rst appellate court to merely scrutinize the evidence to see if there was some evidence to support the trial court’s ndings and conclusions - Ngui v Republic [1984] KLR 729 at page 730 paragraph 20. 8. If PW 1 and PW3 recognized the appellants as their immediate neighbours then why did they not give their names to the police soon after the attack upon them? In every case in which there is a question as to the identity of the accused, the fact of there having been a description given and the terms of that description are matters of the highest importance of which evidence ought always to be given rst of all by person or persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given. See R v Kabogo s/ o Wagunyu 23 (1) KLR 50. 9. The omission on the part of the complainants to mention their attackers to the police goes to show that the complainants were not sure of the attackers’ identity. The failure by the superior court to consider this aspect of the evidence shows that the superior court dealt with the evidence in a perfunctory and generalized manner. There was no exhaustive appraisal of the evidence tending to connect each appellant with the commission of the oences to see whether their respective convictions were safe. Our perusal of the record shows that, indeed, the Superior Court accepted the prosecution case on its face value and failed to consider or evaluate the grounds on which each appellant challenged his conviction. https://new.kenyalaw.org/akn/ke/judgment/keca/2005/342/eng@2005-02-18 2
page 2 of 3
10. Though the prosecution case against the appellants was presented as one of recognition or visual identication it is manifest that the quality of identication by the witnesses was not good and gives rise to a danger of mistaken identication. In the present case, neither of the two courts below demonstrated any caution. Further, there was no inquiry as to the nature of the alleged moonlight or its brightness or otherwise or whether it was a full moon or not or its intensity. In the absence of any inquiry, evidence of recognition may not be held to be free from error. 11. In the circumstances, we have no doubt that the appellants’ convictions are both unsafe and unsatisfactory. The appeal is allowed, the convictions are quashed, sentences set aside and we order that the appellants be set at liberty forthwith unless otherwise lawfully held. DATED AND DELIVERED AT ELDORET THIS 18TH DAY OF FEBRUARY, 2005 PK TUNOI .................................... JUDGE OF APPEAL PN WAKI .................................... JUDGE OF APPEAL JWO OTIENO .................................... JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2005/342/eng@2005-02-18 3
page 3 of 3