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|Case Number:||Criminal Appeal 52 of 1989|
|Parties:||Joshua Onyango Osiwa v Republic|
|Date Delivered:||23 Jun 1989|
|Court:||Court of Appeal at Kisumu|
|Judge(s):||Johnson Evan Gicheru, Richard Otieno Kwach, Joseph Raymond Otieno Masime|
|Citation:||Osiwa v Republic  eKLR|
|Case History:||(Appeal from a judgment of the High Court at Kisumu (Mukele, CA) dated 2nd November 1988 in Criminal Appeal No 86 of 1987)|
|History Docket No:||Criminal Appeal No 86 of 1987|
Osiwa v Republic
Court of Appeal, at Kisumu
June 23, 1989
Masime JA, Gicheru & Kwach Ag JJ A
Criminal Appeal No 52 of 1989
(Appeal from a judgment of the High Court at Kisumu (Mukele, CA) dated 2nd November 1988 in Criminal Appeal No 86 of 1987)
Evidence – identification and recognition evidence – where such evidence the only evidence against accused person – how court should treat such evidence before basing conviction on it.
Criminal Practice and Procedure – alibi – accused person pleading an alibi – accused person not to be under burden to prove his alibi.
The appellant was convicted of the offence of robbery contrary to section 296 (1) of the Penal Code (cap 63) in a Magistrate’s Court and sentenced to four years’ imprisonment, four strokes of corporal punishment a five years post-jail term police supervision.
His first appeal to the High Court was dismissed and he filed this second appeal.
At his trial the appellant had set up an alibi defence and raised the issue of his identification.
The complainant testified that as he was riding his bicycle on the material day the appellant with others caused him to swerve into a ditch from where he heard the appellant shout to his colleagues to cut him with a panga. He managed to get up and ran away and as he was doing so he claimed he looked back and saw the appellant who he said he had seen him about seven times earlier.
No identification parade was called to identify the appellant after he was arrested some six months later.
1. Where the only evidence against an accused is, as here, evidence of identification or recognition, a trial court must examine such evidence carefully to be satisfied that the circumstances of the identification are favourable and free from possibility of error before it can safely make it the basis of a conviction.
2. The failure by the prosecution to call a convict whose statement had implicated the appellant and led to his arrest meant that the prosecution failed to link the appellant with the offence.
3. The trial magistrate had ignored the appellant’s defence of alibi and the High Court had erroneously shifted the burden of proving the alibi to the appellant. An accused person who pleads an alibi assumes no burden to prove it.
1. Wamunga v Republic  KLR 424
2. Republic v Caleb Nyaoke Chama Criminal Case No 80 of 1986
3. Leonard Aniseth v Republic  EA 206
4. Ssentale v Uganda  EA 365
Penal Code (cap 63) section 296(1)
|Case Outcome:||Appeal allowed.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE COURT OF APPEAL
(Coram: Masime JA, Gicheru & Kwach AG JJ A)
CRIMINAL APPEAL NO 52 OF 1989
JOSHUA ONYANGO OSIWA.................. APPELLANT
(Appeal from a judgment of the High Court at Kisumu (Mukele, CA) dated 2nd November 1988
Criminal Appeal No 86 of 1987)
June 23, 1989, the following Judgment of the court was delivered.
This appellant Joshua Onyango Osiwa was convicted of the offence of robbery contrary to section 296(1) of the Penal Code by the Resident Magistrate’s court at Siaya after a trial. He was sentenced to serve four years in jail and to receive four strokes of corporal punishment, he was further ordered to be under police supervision for five years after his release. The convict appealed against his conviction and sentence to the High Court which dismissed that appeal. He has now appealed to this court.
At his trial the appellant put up a defence of alibi and in cross-examination of the prosecution witnesses raised the issue of his identification. The complainant PW2 Joseck Owino Isiche’s evidence on identification of the appellant can be summarized as follows. As he rode his bicycle from Nyangweso to Nyawara he met two people standing on the road. He rang the bicycle bell but they refused to give way. One of the two then put a stick between the bicycle spokes and he swerved into the ditch, then he saw about six people one of who shouted ‘cut him with a panga’; he abandoned the bicycle and ran and as he did so looked behind and saw “them” taking the bicycle. Later he told the police that he could identify two of the gangsters who he knew by appearance only. As far as this appellant was concerned he had seen him about seven times earlier. It was he who had shouted that he should be cut, the witness was sure that he saw the appellant.
The appellant was not arrested until after six months and was not arrested because of information from the complainant. And no identification parade was held to enable the complainant identify the appellant before the trial. (PW 4) Cpl Jeremiah Lagat who arrested the appellant stated that he did not call the complainant to identify the appellant because he had gone on transfer. We reiterate what we said yesterday that where the only evidence against an accused is as here, evidence of identification or recognition, a trial court must examine such evidence carefully to be satisfied that the circumstances of identification are favourable and free from the possibility of error before it can safely make it the basis of a conviction: (see Kisumu Criminal Appeal No 20/89 Cleophas Otieno Wamunga v Republic).
There is one further point in regard to the identification of the appellant. PW4 Cpl Jeremiah Lagat arrested the appellant because the convict in Maseno Criminal Case No 80/86 Caleb Nyaoke Chama allegedly implicated the appellant in a statement to him (PW 4). The record shows that the trial of the appellant was adjourned on three occasions to enable the production of the said convict to testify. When the convict was eventually produced the prosecution declined to call him or offer him to the defence for cross-examination. The result is that the prosecution failed to link the appellant with the offence charged. That failure would suffice to dispose of this appeal but one other matter remains to comment on.
The appellant put forward a defence of alibi but the trial magistrate totally disregarded it; this was noted by the High Court which then erroneously shifted the burden of proof to the appellant. As this is a matter that is covered by authority we reiterate that an accused who pleads alibi as a defence assumes no burden to prove it. See Leonard Aniseth v Republic  EA 206, Ssentale v Uganda  EA 365.
For all the above reasons we allow this appeal, quash the conviction of the appellant, set aside the sentence and the order of police supervision and order that unless he is otherwise lawfully held he shall be set at liberty forthwith.
Dated and Delivered at Kisumu this 23rd day of June, 1989.
JUDGE OF APPEAL
AG. JUDGE OF APPEAL
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.