Wilfred Indiasi Lianda & 2 Others V Republic  EKLR
Criminal Appeal 87 of 1992|
04 Dec 1992|
Richard Otieno Kwach, Abdul Majid Cockar, John Mwangi Gachuhi
Court of Appeal at Kisumu
Wilfred Indiasi Lianda, Simon Gaitoi & Maurice Wawire v Republic
Wilfred Indiasi Lianda & 2 others v Republic  eKLR
Wilfred Indiasi Lianda & 2 others v Republic
Court of Appeal, at Kisumu December 4, 1992
Gachuhi, Kwach & Cockar JJ A
Criminal Appeal No 87 of 1992
(Appeal from a judgment of the High Court of Kenya at Kakamega (Mr Justice Osiemo) dated 15th January 1992, in HCCRA Nos 465-467 of 1989)
Criminal Law - evidence - identification - whether being in company of suspected robbers earlier in the day of robbery is sufficient evidence of being part of the robbery gang.
The three appellants were tried and convicted by District Magistrate of the offence of robbery contrary to section 296 (1) of the Penal Code and sentenced to 2 years each with two strokes. Their first appeal to the High Court was dismissed.
The second appeal to the Court of Appeal was solely on identification by prosecution
The Court of Appeal while upholding the conviction of the 1st and 3rd appellants on the grounds that their identification was sufficient were doubtful as to the identification of the 2nd appellant. The only victim who claimed to have identified the 2nd appellant was the complainant. The trial magistrate while conceding that it was possible that the complainant might not have identified anybody as he believed the intruders were policemen all the same convicted him on the basis that had earlier in the day been with the other appellants.
1. A mere association for a certain period with identified criminals without any independent evidence to provide a positive link with the commission of the crime can never be a basis for a conviction.
No cases referred to.
Penal Code (cap 63) section 296(1)
Mr Mukavale for the Appellants
Mr Karanja for the Respondent