Oyunge & another v Republic

High Court, at Kisii November 3, 1994

Mbaluto J

Criminal Appeal No 243 and 244 of 1994 (consolidated)

(From original convictions and sentences of the Resident Magistrate’s  Court at Rongo in Criminal Case No 352 of 1994 S O Omwega Esq, RM)

Evidence – identification – where appellant is identified in identification parade – where he claims that witnesses had seen him before at DO’s office – where a third witness correctly identifies – where independent witness who is not related to complainant correctly identified appellant – whether the identification evidence was reliable.

The two appellants were convicted in the court below of demanding property with menaces contrary to section 302 of the Penal Code and sentenced to 12 years imprisonment. Hence these appeals against sentence and conviction.

The prosecution’s contention was that on 30.4.1994, about 8 am, at his house in Rongo division, Silvanus Odhiambo was seated outside when 2 appellants who were administration police approached him, identified themselves and entered his house conducted search and found some medicine. They told him they would arrest him for being in possession of poison, but told him to give them something small for him to be released. The amount was Kshs 10,000. The complainant sent for his brother (PW2) to look for money, who later came with Shs 4000, and gave them and he was released. Before that the area chief had pleaded with them to release him, but refused. They were reported to police and were arrested.

The appellants’ case was that they never went to the complainants home, that the two witnesses had seen them at DO’s office and that the case before them was not proved to the required standard.

Held:

1. The claim by Mr Ochillo that all the material witnesses were relatives of the complainant was not factually correct.

2. The identification parade was properly conducted and further the appellants were correctly identified by the three witnesses ie PW1, PW2 and PW4.

3. The claim that the appellants’ defence was not considered by the learned trial magistrate lacks claim as the defences of the two appellants were given due consideration.

Appeal dismissed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 302

Advocates

Mr Ochillo for the Appellants

Ntabo v Republic

High Court, at Kisii October 27, 1994

Mbaluto J

Criminal Appeal No 118 of 1994

(From original conviction and sentence of the Chief Magistrate’s Court at Kisii in Criminal Case No 1283 of 1994 - Kathoka Ngomo Esq SRM)

Criminal Practice and Procedure – pleas – plea taking and recording of pleas – where accused pleads guilty and subsequently admits the facts as correct – whether plea was unequivocal.

The appellant was convicted on his own plea of guilty of attempting to procure an abortion contrary to section 158 of the Penal Code and was sentenced to 4 years imprisonment.

The facts were read to him and he admitted to them. He was then convicted and hence this appeal.

The appellant’s case was to the effect that the plea of guilty was equivocal, that the charge was duplex and finally that the sentence was harsh and excessive.

Held:

1. The plea was clear and unequivocal, and the complain of about how it was taken lacks substance.

2. The appellant understood what charge he faced and as to claim of duplicity of the charge, the error was minor and was curable under section 382 of the Criminal Procedure Code.

3. The sentence meted out cannot be said to be harsh or excessive.

Appeal dismissed.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) section 158

2. Criminal Procedure Code (cap 75) sections 135, 382

Advocates

Mr Osoro for the Appellant.

Omolo v Republic

High Court, at Kisii July 28, 1994

Mbaluto J

Criminal Appeal No 43 of 1994

(From original conviction and sentence of Senior Resident Magistrate’s Court at Oyugis in Criminal Case No 607 of 1994 - S N Riech Esq, SRM)

Evidence – identification – single witness – where Court satisfies itself that it’s safe to act on such evidence – whether it can support conviction.

The appellant was convicted in the court below on two counts of personating a public officer and theft contrary to section 105 (b) and 275 of the Penal Code and was sentence to 12 months imprisonment on each count, and the prison terms were to run concurrently.

Prosecution contended that on 28.11.1993 at about 3 am, the complainant was asleep when she was awoken by people who claimed they were policemen. One of them, the accused, entered the house wearing black berret, black and brown coat, took radio and Shs 110. She woke the son, who followed them and identified one wearing clothes her mother described.

The appellant contended that the magistrate erred in convicting him when conditions of his alleged identification were not good.

Held:

1. A conviction resting entirely on identity invariably causes a degree of uneasiness.

2. The danger is greater when the only evidence against an accused person is identification by one witness, and it’s the duty of the Court to satisfy itself that in all circumstances it’s safe to act on such identification.

3. The Court was satisfied that the appellant was sufficiently identified by the complainant and her son Otieno.

Appeal dismissed.

Cases

1. Roria v Republic [1967] EA 583

2. Abdala Bin Wendo & anothr v Reginam (1953) 20 EACA 166

Statutes

Penal Code (cap 63) sections 105(b); 275