Kamanja v Republic

High Court, at Nyeri October 12, 1990

Tunoi J

Criminal Appeal No 5 of 1990

(Appeal from a Judgment of the Senior Resident Magistrate’s Court at

Nyeri, FN Muche Ag SRM Esq, in Criminal Case No 817 of 1989)

Evidence – Witness evidence – recognition and identification – factors aiding recognition identification.

The appellant was convicted of the offence of robbery on the strength of recognition and identification evidence. The appellant on appeal argued that he was not properly recognised.

The appellant was well known to the complainant who had given him a lift and employed him as a casual labourer. The appellant and complainant had also conversed before the incident and were drinking mates. During the incident the appellant spoke and was recognised by voice. The witnesses further recognised the appellant by moonlight and torch light and promptly identified the appellant as the attacker to the police.

Held:

On the evidence the court came to the right conclusion and was justified in convicting the appellant and rejecting his evidence. The witnesses had more than enough opportunity in seeing the appellant and recognising his voice.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 296(1)

Gichoi v Republic

High Court, at Nyeri June 7, 1990

Tunoi J

Criminal Appeal No 83 of 1990

(From the Original Conviction and Sentence of the District Magistrate’s Court at Othaya, Gothongo DM 1, in Crminal Case No 472 of 1989)

Evidence – witness evidence – identification – Probative value of identification by intoxicated complainants.

Evidence – witness evidence – where identification aided by feeble moonlight and electric light 70 feet away from scene of attack – whether light sufficient for conclusive identification.

The two complainants were attacked at 11.00 pm. Both were intoxicated but stated that they were able to identify their attacker with the aid of the feeble moonlight and the bar lights seventy feet away from the scene of the attack. Their evidence was that the electric lights were cast upon the scene. Counsel for the appellant submitted in the appeal that the learned magistrate misdirected himself in law on the question of the identification of the appellant as the assailant in that the prevailing circumstances did not favour easy identification.

Held:

1. In the courts view it is possible that the two complainants, though convincing, were mistaken due to admitted intoxication.

2. There was no sufficient light at the scene to aid easy and faultless identification.

3. Though recognition might be more reliable then identification of a stranger, the court should nevertheless remind itself that mistakes in recognition of close relatives and friends, have been made.

Appeal allowed, convictions quashed and sentences set aside.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 251

Advocates

Mr Mindo for the Appellant.