Johnson Evan Gicheru, Richard Otieno Kwach, Joseph Raymond Otieno Masime
Cleophas Otieno Wamunga v RepubliceKLR
Wamunga v Republic
Court of Appeal, at Kisumu
June 22, 1989
Masime JA, Gicheru & Kwach Ag JJ A
Criminal Appeal No 20 of 1989
(Appeal from the judgment of High Court at Kisumu, Mukele CA, dated 15 June 1988 in High Court Criminal Case No 561 of 1986)
Evidence – identification – complainant claiming to have identified the appellant under torch light –whether such identification sufficient.
Evidence – recognition – recognition more reliable than identification.
Evidence - identification – appellant allegedly identified as one of the attackers and reported to the police- whether arrest five days later made his identification unrealiable.
The appellant and five others were arrested and charged with nine counts of robbery. At the conclusion of the trial all but one of the accused were convicted.
All the five appealed to the High Court and two of the appeals were allowed and the other three including the appellant’s were partially dismissed.
The appellant appealed to the Court of Appeal on the dismissed counts contending that the evidence on which he was convicted was unreliable.
He argued that the offence having taken place at night and the only available form of lighting being torches his identification as one of the assailants was unreliable.
Besides, despite the fact that the complainant and some of the prosecution witnesses alleged that the appellant was a neighbour and a report of his involvement in the robbery was made to the authorities, he was not arrested until some five days later.
1. Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.
2. Recognition may be more reliable than identification of a stranger but mistakes in recognition of close relatives and friends are sometimes made.
3. The robbery in the present case was committed at night and the only form of lighting were torches carried and flashed by the robbers, all the victims were woken up from sleep in their respective houses.
4. If the appellant had been seen among the robbers and reported as alleged it is not unlikely that he would have remained at large for another five days before being arrested.
5. The identification evidence upon which the appellant’s conviction on counts 1 and 2 was based had not been shown to have been free from the possibility of error. There was therefore no evidence upon which that conviction could be supervised.
1. R v Turnbull & others  3 All ER 549;  3 WLR 445; 
QB 224; (1976) 63 Cr App R 132
2. Abdallah bin Wendo & another v Reginam (1953) 20 EACA 166
Penal Code (cap 63) section 296(1)
Penal Code section 296(1) deleted in part by act no 5 of 2003.