Sammy Kamoti Wafula & 3 Others V Republic
|Criminal Appeals 1290, 1291, 1292 & 1293 of 1985 (Consolidated)
|12 Jun 1986
Surrender Kumar Sachdeva, Abdul Rauf Samnakay
High Court at Nairobi (Milimani Law Courts)
Sammy Kamoti Wafula, David Watua Wanambwa, John Kakai Mambo & Peter Wafula Simiyu alias Bosco Wagoye v Republic
Sammy Kamoti Wafula & 3 others v Republic
Wafula & 3 others v Republic
High Court, at Nairobi June 12, 1986
Sachdeva & Samnakay JJ
Criminal Appeals Nos 1290, 1291, 1292 & 1293 of 1985 (Consolidated)
(Appeals from the Senior Resident Magistrate’s Court at Eldoret, Osiemo, Esq)
Evidence– identification – identification evidence of single witness – how court should treat such evidence – identification of common articles – identification of stolen watch – whether such identification proper where no special identifying mark is shown.
Criminal Practice and Procedure – investigation and prosecution of offences – failure of police to properly conduct investigation–– failure to conduct identification parades – failure leading to insufficiency of evidence and improper prosecution.
Charge – preferment of – where a killing is committed in the course a robbery – whether proper practice to prefer charge of robbery with violence in such case.
The appellants were jointly charged with one count of each of the offences of robbery and robbery with violence contrary to sections 296(1) and 296(2) of the Penal Code (cap 63) respectively.
The evidence was that a Mr. Singh was robbed of his vehicle at gun point by five persons and taken hostage to a plantation from which the robbers later emerged to attack a traveling bus, killing the conductor and robbing from the passengers before getting away.
On the following day, the four appellants were arrested at a bar and in possession of some items which were identified as having been stolen from the bus and one of them later led police to recover a gun which the prosecution alleged was the gun with which the bus conductor had been shot. There was a contradiction in the evidence of two witnesses on whether the recovered gun had a serial number. It was alleged that Singh identified his stolen watch on one of the appellants who had attempted to escape arrest and Singh stated in court that he identified the four appellants as members of the gang that had robbed him.
The appellants denied the charges or having been in possession any of the stolen items but the trial court accepted the prosecution evidence, convicted them and sentenced them to death. They appealed to the High Court.
1. As the items found with the appellants at the bar could not be linked to any one of them the circumstances of how the items were recovered not being spelt out and there being no evidence as to the actions of the appellants in that bar, it was not established how they were in joint possession of those items.
2. Identification at night-time by a single witness is to be treated with great caution and in the instant case, there was absolutely no basis for concluding that the circumstances were conducive to a positive identification of the robbers by Singh.
3. Though the recovery of the gun was a strong incriminating factor against the accused person who led the police to it, there existed a possibility of error as to the identity of the gun.
4. Not much weight could be attached to the evidence that one of the appellants attempted to escape during his arrest.
5. A watch being a common article, there was need for clear and satisfactory evidence such as a special identifying mark by which it could be positively identified by Singh. No such clear evidence was given.
6. There had been a failure on the part of the police to investigate the case properly, particularly the failure to conduct identification parades and the case was not properly presented by the prosecution.
7. (Obiter) The court deprecates the practice of bringing a charge of capital robbery where a murder has been committed in the course of robbery. The accused are unjustifiably denied a trial by the High Court with assessors and deprived of the benefit of committal proceedings and legal aid.
No cases referred to.
Penal Code (cap 63) section 296(1), (2)
Mr N Harwood, Senior State Counsel, for the Respondent