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Republic v Nganga

High Court, at Nairobi

 October 6, 2000

 O’Kubasu JA

Criminal Case No 23 of 1997

Evidence – identification – proper direction to assessors in cases of identification

The accused was charged with two counts of murder contrary to section 203 as read with section 204 of the Penal Code.On the morning of September 28th, 1996 one Paulina Wayua Kaloki a businesswoman was in a lorry which was being driven by her driver one Gilbert Maina Muhia. In the lorry there was one David Kimau Ndolo (deceased). Kaloki was in bed at the back of the driver’s seat. As the lorry proceeded, and between 5.00 am and 6.00 am, the driver Gilbert Maina Muhia saw four people who tried to stop the lorry but he did not stop. The four people started shooting at the lorry while Muhia drove on. He then heard the deceased crying that he had been shot. They went to the nearby Chief’s camp for assistance. The deceased was taken to a nearby hospital and the matter reported to the police. The police proceded to the scene where they found yet another dead body of one Peter Ngugi. The accused was arrested that same evening at his house. An identification parade was conducted in which the accused was suspect and Gilbert Maina Muhia identified him as one of the four people that had shot at the lorry killing Ndolo. One Naomi Wangari Ngugi identified the accused as the person who had collected her husband (Peter Ngugi) on the morning of the incident. The accused denied the killing and discredited the identification parade.

Held:

1. As a general principle of law if an accused puts forward an alibi as an answer to a criminal charge, he does not thereby assume a burden of proving the defence and the burden of proving his guilt remains throughout on the prosecution.

2. Whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should direct the jury (assessors) as follows:

a) warn them of the special need for caution before convicting the accused in reliance on the correctness of identification or identification.  

(b) Instruct them as to the reason for such a warning and make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses can all be mistaken.

(c) Direct them to examine closely the circumstances in which the identification by each witness came to be made, namely, how long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way as for instance by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

Cases

1. Sekitoleko v Uganda [1967] EA 531

2. R v Johnson [1961] 3 All ER 969

3. Abdalla Bin Wendo and Shah Bin Mwambere v Reginam (1953) 20 EACA 166

4. Roria v Republic [1967] EA 583

 5. R v Turnbull [1976] 3 All ER 549

6. Nzaro v Republic [1991] KLR 70; [1988- 1992] 2 KAR 212

Statutes

Penal Code (cap 63) sections 203, 204

Advocates

Mr Mburu for the Accused