Case Metadata |
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| Case Number: | Criminal Appeal 34 of 1978 |
|---|---|
| Parties: | William Nyamonde v Republic |
| Date Delivered: | 19 Dec 1978 |
| Case Class: | Criminal |
| Court: | Court of Appeal at Nairobi |
| Case Action: | Judgment |
| Judge(s): | Eric John Ewen Law, Chunilal Bhagwandas Madan, Cecil Henry Ethelwood Miller |
| Citation: | William Nyamonde v Republic [1978] eKLR |
| Court Division: | Criminal |
| County: | Nairobi |
| Case Summary: | Nyamonde v Republic Court of Appeal, at Nairobi December 19, 1978 Madan, Law JJA & Miller Ag JA Criminal Appeal No 34 of 1978 Evidence - sufficiency of fingerprint evidence to link an accused to an offence - sufficiency of fingerprint evidence alone as a basis for conviction. The appeal seeks to overturn the conviction of the accused and by a magistrate’s court which was upheld by the High Court. The accused had been charged with the offence of shop breaking and stealing contrary to Section 306 (a) of the Penal Code. It was alleged that the accused had broken into a shop and stolen some goods but in the process left his fingerprints on the cabinet of drawers. Expert evidence was called that showed that the accused’s left thumb print matched that collected from the cabinet. His conviction was based on this evidence. The accused seeks to impeach his conviction on the basis that this evidence alone without more is not enough to sustain a conviction. At the court of appeal, the accused admits that the finger print was his but explains that its presence on the cabinet in the shop was because he used to visit the shop as a taxi - driver to collect passengers. Held : 1. That the court has an overriding discretion to exclude evidence of identification by fingerprints especially where it has been obtained oppressively. 2. That in the absence of duress, identification of fingerprints by an expert may be sufficient as a basis for conviction even if it is the only evidence. 3. That in the present case nothing on the record on the second appeal shows that the lower courts erred in law in convicting the appellant and that any reasonable court directing itself properly would arrive at the same conclusion. Appeal dismissed. Cases 1. Nazir Ahmed v Republic EA 345 Statutes No statutes referred to. |
| 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 FOR EAST AFRICA
AT NAIROBI
( Coram: Madan, Law JJA & Miller Ag JA )
CRIMINAL APPEAL NO. 34 OF 1978
BETWEEN
WILLIAM NYAMONDE...............................................................................APPELLANT
AND
REPUBLIC............................................................................................RESPONDENT
JUDGMENT
Madan JA The appellant was convicted and sentenced by the Senior Resident Magistrate, Kisumu for the offence of shopbreaking and stealing contrary to Section 306(a) of the Penal Code and his appeal therefrom was dismissed by the High Court at Kisumu (per Cotran J). The offence was alleged to have been committed sometime between noon and 6 pm on April 25, 1976 (a Sunday) after the owner had locked up the shop and left the premises. The Police were summoned to the scene the same day and found that glass vents above the wall of the shop had been broken and that entry into the shop was possibly thereby obtained and the goods in the shop ransacked. After ordering non-interference with the contents of the shop, the police continued their investigations the following day and uplifted seven fingerprints from a cabinet of drawers. It was satisfactorily shown by expert evidence at the trial that a left thumbprint collected amongst the seven sets of fingerprints corresponded with the left thumbprint of the appellant which was taken from him in remand prison after his arrest three months later. The question before us is whether this the only evidence purportedly connecting the appellant with the alleged offence was sufficient upon which to base his conviction.
In his defence the appellant claimed that his fingerprint was found on the cabinet because he had previously worked in the shop; but the shop-owner said that he had never seen the appellant before the trial. His fourth ground of appeal reads that he does not deny that the finger print was his but he may have placed it there as he used to visit shops as a taxi-driver to collect passengers.
It is well established that “identification by fingerprints by a person expert in such prints is allowed, and may be sufficient, even though it is the only evidence of identification” - Archbold 37th Edition, p 1009. The authority continues -
“The court has an overriding discretion to exclude such evidence and such discretion would be exercised in favour of the defence where the evidence has been obtained oppressively eg by false representations, by a trick, by threats or by bribes.”
Both courts below considered this aspect of the evidence. We find nothing on the record on a second appeal to suggest that they may have erred in law in convicting the appellant. Indeed, we think that any reasonable court directing itself properly, would have come to the same conclusion. We therefore dismiss.
As Law JA and Miller Ag JA agree, it is so ordered.
Dated and Delivered at Nairobi this 19th day of December 1978.
C.B.MADAN
....................................
JUDGE OF APPEAL
E.J.E.LAW
....................................
JUDGE OF APPEAL
C.H.E.MILLER
.........................................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the
original.
DEPUTY REGISTRAR
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