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|Case Number:||Criminal Appeal 35 of 1980|
|Parties:||Joseph Ondu Okumu v Republic|
|Date Delivered:||01 Dec 1980|
|Court:||Court of Appeal at Kisumu|
|Judge(s):||Eric John Ewen Law, Cecil Henry Ethelwood Miller, Kenneth D Potter|
|Citation:||Joseph Ondu Okumu v Republic eKLR|
|Case History:||(Appeal against the decision of Scriven J in the High Court, Kisumu, on 27th June 1980 in Criminal Appeal No 45 of 1980)|
|Parties Profile:||Individual v Government|
Joseph Ondu Okumu v Republic
Court of Appeal, Kisumu
1st December 1980
Miller , Potter JJ A & Simpson Ag JA
Criminal Appeal No 35 of 1980
Criminal appeal - decision of appellate tribunal - need to state reasons - sufficiency of reasons - Criminal Procedure Code (cap 75), section 169. .
Criminal law – evidence – identification - identity parade -irregularity in holding parade - comment by third party to complainant encouraging identification made before parade - no unfairness.
When a High Court judge on a first appeal gives in broad outline his reasons for agreeing with the magistrate’s findings on the crucial issue in the case, he sufficiently complies with his responsibility to state the reasons for his decision. Moreover, the formal requirements of section 169 of the Criminal Procedure Code relating to a judgment do not apply to a judgment on an appeal. Misana v The Republic  EA 334, EACA, and Mosee v The Republic  Kenya LR 112, CA, considered.
An identification parade is not rendered unfair by any comment to the effect that the police wanted the complainant to identify someone which is made by a person who has no responsibility for the parade and is not even a police officer.
Cases referred to in judgment:
Joseph Ondu Okumu appealed to the Court of Appeal (Criminal Appeal No 35 of 1980) against the decision of Scriven J in the High Court, Kisumu, on 27th June 1980 in Criminal Appeal No 45 of 1980 dismissing his appeal against his conviction for robbery. The grounds of his appeal are set out in the judgment of the court delivered by Miller JA.
|Case Outcome:||Appeal dismissed.|
|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: Miller , Potter JJ A & Simpson Ag JA)
CRIMINAL APPEAL NO. 35 OF 1980
JOSEPH ONDU OKUMU........................APPELLANT
(Appeal against the decision of Scriven J in the High Court, Kisumu, on 27th June 1980 in Criminal Appeal No 45 of 1980)
JUDGMENT OF THE COURT
The appellant was convicted by the Resident Magistrate’s Court of robbery, contrary to section 296(1) of the Penal Code, on a charge consisting of two counts affecting two victims in the same incident. His appeal to the High Court, Kisumu, was dismissed.
The grounds of appeal in this second appeal are as follows: (1) the High Court judge erred in law in not finding that the trial magistrate had misdirected himself on the onus of proof; (2) the High Court judge erred in law in not giving the benefit of the doubt whether or not the prosecution had discharged the burden of disproving the appellant’s alibi in view of the magistrate’s finding that it was difficult to find flaw in the appellant’s alibi; (3) the High Court judge misdirected himself in law in not holding that the identification parade was not held according to the Judges’ Rules regarding the conducting of such parades; (4) the High Court judge erred in law in not finding that the trial magistrate erred in taking into account the appellant’s exercise of his statutory right under section 211 of the Criminal Procedure Code to make an unsworn statement; (5) the High Court judge having found that the trial magistrate used offensive language to the appellant’s advocate and further having found the same to be “quite an unacceptable judicial approach” erred in law in not giving the benefit to the appellant; and (6) the High Court judge erred in law in not complying with section 169 of the Criminal Procedure Code.
Mr Owino first argued ground (6). In support of this ground he submitted that the judgment of the High Court was inadequate to satisfy the section. But this section does not apply to judgments on appeal. The duty of a court of first appeal is laid down in Misana v The Republic  EA 334, which case was recently applied by this Court in Kisumu in Mosee v The Republic  page 112, ante. In the present case, however, upon examination of the record of proceedings in the Magistrate’s Court, it is clear that the important point for determination was whether the appellant was satisfactorily identified by the victims of the robbery; and the above judgment gives in broad outline the reasons for the judge’s agreeing with the magistrate’s finding that the appellant was properly identified. It cannot therefore be said that Mosee v The Republic and Misana v The Republic were not followed.
Under grounds (1) and (2) Mr Owino, in reliance on certain passages in the judgment of the magistrate, suggested that the magistrate had misdirected himself with respect to the burden of proof in disproving an alibi. He referred us to Ssentale v Uganda  EA 365. After careful consideration of his judgment we are satisfied that the magistrate in no way indicated that any burden rested on the appellant with respect to his alibi. We also consider that the issue of alibi was adequately dealt with by the judge. This is a case where the alibi was disproved by the strength of the prosecution’s evidence of identification.
Under ground (3) Mr Owino attacked the conduct of the identification parade. He first complained of the evidence of the complainant, ie of her saying “some were short, some were tall.” The police inspector, who conducted the parade, said “There were eight members of the parade of similar height and age as the accused”. He was not cross-examined on this point. We see no merit in this submission. Secondly, he complained that the complainant had said “I had to identify someone”, and another witness said that he told her that the police wanted her to identify someone.
The inspector, on the other hand, said that he told the complainant that a member of the gang might or might not be on the parade. He does not appear to have been cross-examined on that point. If the inspector’s evidence is accepted, and we see no reason why it should not be, rule 12 of the “Instruction for Identification Parades” was complied with. We do not see how an identification parade can be rendered unfair by anything said of this kind prior to the parade by a person who had no responsibility for the parade and was not a police officer. Moreover, it does not surprise us that ordinary people should refer to a parade as being held for the purpose of identifying “a suspect who is on the parade” as opposed to “a suspect who may or may not be on the parade”.
Under ground (4) Mr Owino submitted that the magistrate erred in saying8 that the appellant had taken advantage of his right to give an unsworn statement and thus avoid cross-examination. He relied upon Lubogo v Uganda  EA 440. It is made clear in that case that it is open to the judge to comment on the fact that an accused person has not given sworn evidence, but he should be cautious in doing so, and this consideration should never be used to bolster a weak prosecution case. In this case we do not consider that the magistrate’s comment was indiscreet, or that this was a weak case. Ground (5) was not pursued.
We accordingly order that this appeal be dismissed.
Dated and delivered at Kisumu this 1st day of December 1980.
JUDGE OF APPEAL
JUDGE OF APPEAL
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original