Joseph Raymond Otieno Masime, Fred Kwasi Apaloo, Harold Grant Platt
Annah Wanjuhi Njagi & William Wambiru v Republic
Annah Wanjuhi Njagi & another v Republic  eKLR
Annah Wanjuhi Njagi & another v Republic
Court of Appeal, at Nairobi
October 26, 1988
Platt, Apaloo & Masime JJA
Criminal Appeal No 133 of 1987
(Appeal from a Judgment and Sentence of the High Court at Nairobi, Mbaluto & Bosire JJ)
Evidence – corroboration - confession of an accused person – weight of such confession as evidence against a co-accused – when such a confession can be admitted – Evidence Act (cap 80) section 32 – whether evidence of an accomplice may be taken as corroboration of an accused’s confession statement.
Evidence – duty of trial court to weigh all the evidence – failure of court to consider alibi defence – whether conviction proper.
The appellants were convicted and sentenced on a charge of robbery with violence contrary to the Penal Code (cap 63) section 296(2).
The evidence on which they were convicted was that on the material day, a group of people armed with weapons had broken into the house of the complainant, forcibly took money therefrom and injured him. The first appellant had made a confession statement which she retracted and repudiated but which was found by the trial court to have been properly made by her and accepted in evidence.
One witness claimed to have recognized the second appellant during the robbery and she had picked him out in an identification parade. However, both the first appellant and Paulina, an accomplice who it was said had waited near the scene of the robbery and taken part of the stolen money, gave evidence that the second appellant had not taken part in the robbery.
The trial court considered that the first appellant’s confession was corroborated by the evidence of Paulina, the accomplice.
The High Court dismissed the appellants’ first appeals and they appealed to the Court of Appeal. It was argued that the lower courts had failed to consider the second appellant’s alibi defence and that it had been wrong to take Paulina’s evidence as corroboration for the first appellant’s confession statement.
1. A confession by an accused person implicating a co-accused may be taken into consideration against that other accused person but it can only be added to a case almost proved by the prosecution. This means that it can only be used as lending support to evidence which only falls short by a very narrow margin of the standard of proof.
2. The confession by the first appellant did not concern the second appellant and it carried the prosecution case no further. It should not have been relied upon under the Evidence Act (cap 80) section 32.
3. The trial court had failed to weigh up the alibi defence of the second appellant before reaching its decision that the second appellant’s recognition was proper.
4. If the trial court had weighed the alibi, it would have found it was supported by the evidence of Paulina, the accomplice. If the evidence of Paulina was deemed sufficient to corroborate the confession of the first appellant, the court had to consider why Paulina’s evidence supporting the second appellant’s alibi could be rejected.
5. The courts below failed to appreciate the facts that the recognition of the second appellant was based on a fleeting glimpse of him in torch light which momentarily fell on his face. The recognition was not borne out by any immediate report or even an identification parade. In the circumstances, if the evidence of the prosecution had been weighed with the defence, it was doubtful whether the courts below would have come to the same conclusion.
6. In admitting the First Appellant’s confession in evidence, the lower courts had considered the various factors and it could not be said that they had wrongly concluded that the confession was voluntary.
Moreover, the lower courts had properly directed themselves in seeking corroboration which was found in the evidence of Paulina, the accomplice.
First Appellant’s appeal dismissed.
1. Gopa s/o Gidemabenya & Others v R (1953) 20 EACA 318
2. Kinyua v R  KLR 141
3. Okale & others v R  EA 555
4. Leonard Aniseth v R  EA 206
5. Raphael v R  EA 473
6. Bassan & Wathobia v R  EA 521
7. DPP v Gester (1973) 57 Cr App R 212;  3 All ER 1056;  AC 296;  3 WLR 910
8. Kiarie v R  KLR 739
1. Penal Code (cap 63) section 296(2)
2. Evidence Act (cap 80) section 32
Miss Mutua for the First Appellant
Mr Oduk for the Second Appellant