Jacob Owaka Omollo v Republic

chest wall and associated soft tissue edema. There were subcutaneous chest wall laceration with fracture of the left third rib. He concluded that the cause of death was respiratory failure secondary to blunt chest trauma. 4. Meanwhile on 30th June, 2015, the appellant had been taken into custody before he was charged before the High Court at Kisumu with the murder of the deceased. He denied the charge and a trial ensued with the prosecution calling 6 witnesses. The brothers PW2, PW3 and Moses Onyango Kamwoma (PW6), together with Isaac Otieno Awuor (PW5) testied as eye-witnesses and named the appellant as one of the deceased’s assailants. 5. At the end of the prosecution case the learned judge (E. N. Maina, J.) placed the appellant on his defence. He elected to give sworn testimony in which he denied being at the scene of the crime at the material time. He raised an alibi that he was miles away at the CDF oce in Katito where he stayed, in the company of witnesses that he called in his defense, from early morning until about 4.30p.m. They included Georey Odhiambo Bolo (DW2) and Josephat Ondieki Asewe (DW3). 6. At the conclusion of the trial the learned judge, in a considered judgment remarkable for its brevity at three and a half page found the case against the appellant proved. She then proceeded to convict the appellant and to sentence him to suer death as by law provided. 7. Aggrieved, the appellant led a notice of appeal followed by a memorandum of appeal in which it is contended on his behalf that the learned judge erred in law and fact by; Accepting uncorroborated identication evidence that did not identify the appellant as a mono-eyed person.Failing to analyze and appreciate the appellant’s alibi defence.Failing to nd and hold that the evidence of prosecution witnesses was contradictory and untenable.Failing to analyze the evidence and unlawfully accepting the evidence of prosecution witnesses.Imposing a harsh sentence of death on the appellant who was a rst oender. 8. At the hearing of the appeal, Prof. Ojienda, learned Senior Counsel appeared, leading Mr. Ngala, for the appellant while Mr. S. G. Thuo, the leaned prosecution counsel was for the respondent. Both had led written submissions which they highlighted. Going rst, Prof. Ojienda contended that the appellant’s conviction was against the weight of evidence, which was in fact merely circumstantial and inadequate. 9. Next, counsel addressed what may well be the fulcrum of this appeal, namely the alibi defence which the appellant had raised quite early in the proceedings to the eect that at the time of the alleged oence, he was at Katito receiving his salary. Prof. Ojienda pointed out that the learned judge properly observed that even though the Investigating Ocer knew the details of the alibi, he did not investigate it. Counsel faulted the learned judge for not testing that alibi against the testimonies of the prosecution witnesses before concluding, erroneously in his view, that the alibi defence was weak. To the contrary, according to counsel, the alibi evidence was strong and cogent and corroborated by two other defense witnesses. In short, it was inconceivable that the appellant could have been at the scene committing the crime charged and at Katito and Pap Onditi at the same time. The Investigating Ocer had no basis for not believing and not investigating the alibi yet there were two witnesses who corroborated it. 10. Prof. Ojienda next took issue with the production by the Investigating Ocer of the post mortem report prepared by Dr. Omondi Mboya who was not called as a witness. He contended that experts must be called and examined on their opinions. This was particularly needful in the present case where the cause of death was said to be blunt trauma yet the appellant is alleged to have been armed with a spear, which is an inconsistent weapon. Moreover, the investigating ocer did not recover the murder https://new.kenyalaw.org/akn/ke/judgment/keca/2022/434/eng@2022-03-11 2

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weapon and did not even visit the scene of crime. Given these inconsistences, the learned judge ought to have acquitted the appellant. 11. Prof. Ojienda next argued that the identication evidence was wanting as no identication parade was conducted to show whether the appellant was among the ten assailants rendering his identication to court by PW2 and PW3 mere dock identication that has nil probative value. Those two witnesses were about 100 metres away and running from the attackers so that there was no cogent evidence that the appellant was at the scene. The evidence of PW5 was no more useful as he claimed to have identied the appellant while hiding in a bush. What is more, he recorded two statements that were contradictory and inconsistent and ought to have been resolved in the appellant’s favour. Citing Wamunga -vs- Republic [1989] eKLR, counsel pressed that the appellant’s alleged identication at the scene was unsafe as it was not free from the possibility of error. He questioned the convergence of identication of only one out of ten people in dicult circumstances including the presence of bushes and distance which should have led the learned judge to be particularly cautious regarding the identication evidence. He urged us to allow the appeal. 12. Opposing the appeal, Mr. Thuo submitted that the testimony of PW1, 2 and 3 amounted to recognition and that the oence occurred in broad daylight. When we questioned him on whether that could be said of PW2, for instance, he answered that the witness “did not say on record that he knew the appellant and for how long.” 13. Regarding the production of the post-mortem report by the Investigating Ocer, learned prosecution counsel argued that the production was pursuant to section 68 of the Evidence Act, and with the concurrence of Mr. Onsongo who was the appellant’s counsel at the trials. 14. Turning to the question of alibi, Mr. Thuo conceded that the Investigating Ocer “ought to have investigated it and his failure to do so was an oversight” but was quick to add that the said alibi “was not supported by specicity in terms of timings.” He added, however, that ordinarily receipts do not show time. 15. The alibi was the beginning point of Prof. Ojiendas’ who stated that the distance between the pay point at Pap Onditi and the scene of the crime was 2 hours by walking as testied to by PW2. The learned judge should therefore have found that it was impossible for the appellant to have been at the scene. Thus, he added, had the Investigating Ocer investigated the alibi defence, he would have conrmed its veracity. 16. He reiterated that the evidence “left a huge gap” and the learned judge should have returned an acquittal as there was no evidence of recognition. All this evidence amounted to was dock identication and the witnesses gave conicting testimonies of how they identied the appellant with PW3 even calling him by a strange name, “Ezekiel”. 17. We have considered the rival submissions and the authorities cited against the entire record consistent with our duty on a rst appeal to subject the entire evidence to a fresh and exhaustive re-evaluation and re-appraisal with a view to drawing our own inferences of fact. We proceed by way of re-hearing but alive to the limitation that we have not had the advantage, enjoyed by the trial court, of hearing and observing the witnesses in live testimony. We make due allowance for that limitation. See Rule 29 of the Court of Appeal Rules; Okeno -vs- Republic [1972] EA 32. 18. We shall rst dispose of the post-mortem report. It is common ground that the same was produced by the Investigating Ocer, Inspector of Police Johnstone Mwamburi (PW4). Its maker, Dr. Omondi Mboya, was not called as a witness. We accept as good law the proposition that experts who prepare opinions ought to attend court to provide on the record the basis for their conclusions and, which https://new.kenyalaw.org/akn/ke/judgment/keca/2022/434/eng@2022-03-11 3

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is more, to answer any questions on their methods, ndings and conclusions as may be put in crossexamination by opposing counsel and the court itself. Their reports are not infallible, less still binding upon the court, which must consider them alongside other evidence. That notwithstanding, and whereas we note the cases and materials cited for the appellant, including the High Court decisions of Kenneth Mwenda Mutugi -vs- Republic [2019] Eklr, Marjan Musot Mukoma -vs- Republic [2018] eKLR and the South African case of S -vs- Huma [1995] 1 SA CR 409 (W) as well as Meint JesVan de Walt L’s 2003 article “Expert Odyssey: Thoughts on Presentation and Evaluation of Scientific Evidence” South Africa Law Journal (SALJ) 120, 252-372, we think that nothing turns on the point. The appellant was ably represented by a senior and experienced advocate at the trial and, as pointed out before us by Mr. Thuo, the said counsel expressly indicated to the court that the defence had no objection to the production of the post-mortem report in the manner proposed. We say no more on the subject. 19. We now turn to the contested issue of the appellant’s identication at the scene as one of the persons who assaulted the deceased. It is not disputed that whereas the assault occurred at about 4p.m, the identifying witnesses were themselves in fear for their own safety and were running away from the group of ten or so assailants. PW3 said he and his brothers “took to [their] heels” and he only looked back after 100 metres when he saw the deceased being beaten. Even though he claims to have identied Owaka and Ouma Otanda, as did PW2 and PW5, this witness when challenged in cross-examination called the appellant by totally dierent names namely “Ezekiel” and then again “Moses Jacob Omollo”. No other witness attached these names to the appellant and we think there is some substance in the appellant’s claim that the identication evidence, which was presented as recognition, did not reach a standard that eliminated the possibility of error. We note that PW5 admitted to have been behind bushes when the attack on the deceased occurred. He also attempted to disown an earlier statement to the police in which he did not mention how far he was from the scene, nor indicate whether the appellant was armed with any weapon at the material time. 20. PW6 also testied to having been so far as not to tell who the herders were but was quick to add that the attackers whom he saw from a distance included “Owaka and Ouma”. He said the following in cross-examination; “ Today I have testied that I ran towards my home. I also testied that where Paul was being assaulted (sic) was far. It is true I ran away and hid in a bush. I hid because I feared for my life. My priority was to save my life. I chose a thick bush such that nobody could see me. I did not write that Owaka was armed with a rungu; panga and spear.” 21. It is argued on the appellant’s behalf that the evidence of identication was weak and of no probative value in the circumstances as it was essentially dock identication. It was in fact suggested that the constant mention of the appellant alone among more than ten assailants was rehearsed and conned to falsely implicate him in the crime. Without a properly-conducted identication parade, and the eyewitness accounts being inconsistent and contradictory, it was unsafe to base the appellant’s conviction on weak identication evidence. 22. The necessity for courts to proceed with caution or circumspection before convicting an accused person solely or mainly on the evidence of a single or multiple identications has been the subject of numerous court decisions. The caution proceeds from a realization that the spectre and possibility of mistaken identity with its potential for great injustice always looms large. See Roria -vs- Republic [1967] EA 583. 23. Thus, reliance should be placed on identication evidence only when such evidence, viewed as a whole, is free from the possibility of errors. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/434/eng@2022-03-11 4

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24. We have anxiously considered the learned Judge’s treatment of this aspect of the case and we have serious doubts that she approached the evidence with requisite caution. First, we note that the learned Judge seemed to have overlooked the centrality of identication as the determinative issue in the case. Instead, she identied the issues as “whether the accused by an unlawful act caused the death of the deceased and if he did it was of malice aforethought.” She spent quite some time in dening before she proceeded to hold that whoever killed the deceased did so of malice aforethought. On the question of identication of the appellant, the learned Judge appears, with respect, to have dealt with it in a rather perfunctory manner and in a brief few sentences of her hardly four-page long judgment; “ The prosecution witnesses PW2, PW3, PW5 and PW7 testied that they saw the accused person. PW5 even stated that the accused passed by the place he was seated as his cattle grazed, and spoke to him. PW6 also alleged to have seen the accused at close quarters as the attackers ran towards him.” 25. The learned Judge in her own words thereafter seems to have accepted that identication evidence as being “very cogent” yet, as we have previously pointed out, there were inconsistencies, contradictions and possible embellishments. Thus, the conclusion seem to have been arrived at without vigorous analysis of that identication evidence to determine whether it was free from the possibility of error. See Wamunga -vs- Republic [1989] eKLR 26. We think, with respect, that had the learned Judge properly examined the full circumstances surrounding the appellant’s alleged identication at the scene, she would not have fallen into the error apparent in her treatment of the decisive question of the alibi defence he raised. We have already mentioned that the investigating ocer, in what Mr. Thuo for the Republic mildly terms “an oversight” and “a failure,” did not investigate the appellant’s alibi and did not visit the place where the appellant said he was at the material time. That alibi having been raised very early when the matter was under investigation, and the witnesses in support thereof having been named, the investigating ocer had a solemn duty, implicating the justice of the appellant’s very prosecution, to investigate it. That the investigating ocer ignored that alibi altogether, and it not an idle afterthought, smacked of a reckless neglect of duty and left the prosecution case in an intolerable state. The learned Judge properly made these observations; “ In this case there is evidence that even prior to the accused being charged he recorded a statement in which he denied the oence and stated he was somewhere else at the time the oence was committed. The investigating ocer PW4 admitted that the accused even gave details of where he was rst as he has testied in this case. The investigating ocer who asked by counsel for the accused if he visited those placed in order to dislodge the alibi, his answer was that he did not do so as he saw no reason for it. He failed an investigating ocer (sic). It is always upon the prosecution to dislodge an alibi and he should have investigated the matter further.” 27. Indeed, the law has long been settled that an accused person who raises an alibi defence does not thereby assume a burden to prove it. All such a defence does is give notice to the prosecution to call or produce evidence that dislodges that defence as it endeavors to prove its case beyond reasonable doubt. Once the prosecution fails to do so, the defence remains as a probable fact sucient to introduce into the mind of a court a doubt, that is not unreasonable, as to the guilt of the person accused. Indeed, an alibi defence is to be gauged on the scales of probability only and thus accepted if probable. It ought to be rejected only if it is incredible. See Kiarie -vs- Republic [1984] eKLR and Elizabeth Waithegeni Gatimu -vs- Republic [2015] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/434/eng@2022-03-11 5

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28. Applying those principles to the case before us, we think that the appellant’s alibi, as given consistently to the investigating ocer and unshaken in testimony, to the eect that on the material time he was at Pap-Onditi and Katito all afternoon and nowhere near the scene of crime was probable and credible. He was at the Constituency oce and was paid his salary between 3.30 pm and 4.00 pm. Georey Odhiambo Bolo (DW2) a driver in the Nyakach Constituency oce testied that he took one Ishmael and the appellant for lunch before they together went for their salary between the same timelines testied to by the appellant. Josephat Ondiek Asewe (DW3), the Deputy Manager conrmed having paid the appellant and others between 3.30pm and 4.00 pm. He went on to state that he was with the appellant between 3pm and 4.00 pm and so it is impossible for the latter to have been at Kochogo, which was 20 Km away, at the time the oence is alleged to have been committed. These defense witnesses were consistent and unshaken in cross-examination. And the prosecution did not call witnesses or evidence to disprove the defence version that the appellant was at Pap Onditi and Katito. 29. Given that state of the record, we think it puzzling that the learned Judge, instead of resolving the conicting versions in favour of the appellant, stated that “having heard evidence from both sides I nd the alibi defense weak.” The learned Judge then went on to discount or discredit that alibi as follows; “ The document produced by the accused only showed he was paid but does not state what time he was paid. It is therefore noteworthy that none of the two witnesses allege to have accompanied the accused person to wherever he said he went.” 30. With the greatest respect to the learned Judge, this approach to the alibi evidence was wholly unsatisfactory and plainly erroneous. As we have stated already, the appellant bore no duty to prove his alibi; though in the circumstances, he did. Defense witnesses did testify, as did the appellant, that he was at the Constituency oces and that he was paid his salary between 3.30pm and 4.00pm. The document produced conrmed payment while time was already testied to by all defense witnesses. It was impractical, prejudicial and a misdirection for the learned Judge to expect that the document in proof of payment needed to have a time indication. It is equally impractical for the learned Judge to nd weakness in the alibi defence merely because the witnesses “did not swear to have accompanied the appellant to wherever he went” yet their solid testimony was that they were together with him, more than 20km away from the scene of the crime, at the relevant time. 31. We are of opinion that it is not for the court to nd strength for the prosecution case in the supposed weakness of the defense case. In the present case, the alibi defence was both reasonable and probable, and it did create a doubt whether the prosecution had proved its case beyond reasonable doubt. Whatever suspicions a court may harbour that an accused person may have been involved in a crime, if they are not supported by the evidence, they must be stilled and the person acquitted if there is a reasonable doubt as to his guilt. The burden to prove the case is always on the prosecution and it never shifts. 32. We come to the conclusion that the appellant’s conviction was unsafe. We thus allow the appeal, quash the conviction and set aside the sentence. 33. The appellant shall be set at liberty forthwith unless otherwise lawfully held. DATED AND DELIVERED AT KISUMU THIS 11TH DAY OF MARCH, 2022. P. O. KIAGE ............................... JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2022/434/eng@2022-03-11 6

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MUMBI NGUGI ............................... JUDGE OF APPEAL F. TUIYOTT ............................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/434/eng@2022-03-11 7

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