Case Metadata |
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| Case Number: | Criminal Appeal 91 of 1985 |
|---|---|
| Parties: | Ouma v Republic |
| Date Delivered: | 25 Jan 1986 |
| Case Class: | Criminal |
| Court: | Court of Appeal at Mombasa |
| Case Action: | Judgment |
| Judge(s): | John Mwangi Gachuhi, James Onyiego Nyarangi, Chunilal Bhagwandas Madan |
| Citation: | Ouma v Republic [1986] eKLR |
| Case History: | (Appeal from the High Court at Mombasa, Bhandari J) |
| Court Division: | Criminal |
| Parties Profile: | Individual v Government |
| County: | Mombasa |
| History Judges: | Raj Bahadar Bhandari |
| Case Summary: | Ouma v Republic Court of Appeal, at Mombasa January 25, 1986 Madan Ag CJ, Nyarangi JA & Gachuhi Ag JA Criminal Appeal No 91 of 1985 (Appeal from the High Court at Mombasa, Bhandari J) Appeal – summary dismissal of – under section 352(2) of the Criminal Procedure Code (cap 75) – appellant convicted on identification evidence of single witness – appellant challenging identification on appeal – whether such appeal liable to summary dismissal. Evidence – evaluation of – duty of court in evaluating prosecution evidence vis a vis the accused’s defence. The appellant was convicted of stealing goods in transit contrary to section 279(c) of the Penal Code (cap 63). His conviction depended largely upon the identification evidence of a single witness. The witness, who had been kept in police custody as a suspect, had testified that police had previously told him that he would be allowed to go home if he identified someone. The trial magistrate admonished the police for what he termed as “underhand practice” but nevertheless convicted the accused. The appellant appealed to the High Court arguing that his identification by the witness was questionable. The appeal was summarily rejected and he appealed to the Court of Appeal. Held: 1. The appellant’s ground of appeal that his identification by the witness was questionable was a substantial ground of law which took his appeal out of the ambit of section 352(2) of the Criminal Procedure Code (cap 75) and it ought not to have been summarily rejected. 2. At the time of evaluating the prosecution’s evidence, the court must have in mind the accused person’s defence and must satisfy itself that the prosecution had by its evidence left no reasonable possibility of that defence being true. If there is doubt, the benefit of that doubt always goes to the accused person. That did not appear to have been done in this case. 3. As the trial magistrate was not altogether satisfied with the prosecution evidence, it was wrong to proceed to convict the appellant. 4. The Court could not say that the witness had honestly identified the appellant. Appeal allowed Cases No cases referred to. Statutes 1. Penal Code (cap 63) section 279(c) 2. Criminal Procedure Code (cap 75) section 352(2) 3.Appellate Jurisdiction Act (cap 9) section 3(2)ated |
| History County: | Mombasa |
| 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
AT MOMBASA
( Coram:Madan Ag CJ, Nyarangi JA & Gachuhi Ag JA)
CRIMINAL APPEAL NO. 91 OF 1985
BETWEEN
OUMA................................................................APPELLANT
AND
REPUBLIC....................................................RESPONDENT
(Appeal from the High Court at Mombasa, Bhandari J)
JUDGMENT
The appellant was convicted together with a co-accused named Murutu of the offence of stealing goods in transit, contrary to section 279(c) of the Penal Code. They both appealed to the High Court against their convictions. The two appeals were summarily rejected by the same judge of the High Court.
Murutu appealed again to this court. His appeal was remitted for hearing by the High Court as it ought not to have been summarily rejected under section 352(2) of Criminal Procedure Code.
Murutu’s appeal was heard in due course. The judge who had originally rejected it summarily allowed the appeal, quashed Murutu’s conviction and set aside the sentence.
The convictions of both the appellant and Murutu depended upon their identification by one Ambrose Isaac Ombok (PW 4) a single identifying witness.
One of the appellant’s ground of appeal to the High Court was that his identification by Ambrose was questionable. This was a substantial ground of law which took it out of the ambit of section 352(2) of the Criminal Procedure Code, learned state counsel concedes that the appellant’s appeal ought not to have been summarily rejected. We agree. If that were all, we would normally remit the appeal for hearing by the High Court.
There is more here. First, Ambrose who had been kept in police cells as a suspect himself before he was taken to an identification parade said in his evidence that the police told him if he identified someone he would be allowed to go home. Thereafter he identified Murutu.
The trial magistrate remarked in his judgment :-
“He (Ambrose) said that the police told him at one point after he had identified the first accused (ie appellant) that if he identified the rest he would be let go. If they did this it was very wrong – such underhand practices are not, however unknown with the police. I wish they would stop.”
We too wish such under desirable practices which are both illegal and dishonourable must stop. They bring into disrepute the administration of justice, the rule of law, and the police force itself whose members perpetrate these unethical methods to obtain evidence to fix up guilt of suspects who are in their custody.
The trial magistrate further said “that police witnesses most of them are never satisfied that they have given satisfactory evidence until they have laced it with a lie or two and I have never met a person who is better at forgetting things than them.”
It is regrettable that this is our experience also. The police seem to think that once they pick up someone as a suspect their sole duty is to prove him guilty howsoever and by whatsoever means whether he is guilty or not. More often they refuse to listen, therefore fail to investigate, the protestations of innocence by the suspect with the result that the suspect presumption of guilty by the police carries him into a trial in court.
The magistrate’s remarks convey to us, learned principal state counsel also agrees, that he did not feel altogether happy about the prosecution evidence against the appellant and Murutu. Yet he proceeded to convict them both. That was wrong, forgetting that the benefit of the doubt always goes to the accused.
The learned judge on Murutu’s appeal said that the court at the time of evaluating the prosecution evidence must have in mind the accused’s defence (which was alibi in Murutu’s case, and wrong identification in the case of the appellant), and must satisfy itself that the prosecution had by its evidence left no reasonable possibility of that defence being true, that that did not appear to have been done in this case.
In considering whether Ambrose could be relied upon, the learned judge on first appeal said that the only inference that could be drawn was that picking out Murutu appeared to be the price Ambrose paid for his own freedom. In our view Ambrose was the rotten apple in the barrel of the prosecution evidence. We are unable to say safely that he honestly identified this appellant. If he could act dishonestly in the case of Mr Murutu he could also have been acting as an opportunist in the case of the appellant.
Principal learned state counsel agrees, and we appreciate both his correct and forthright approach, that all in all this is an unsafe conviction.
Acting under the provisions of section 3(2) of the Appellate Jurisdiction Act (cap 9) we allow this appeal. The appellant’s conviction is quashed, and the sentence set aside. He is to be set at liberty in respect of this charge.
Dated and Delivered in Nairobi this 25th day of January 1986.
C.B.MADAN
.................................
JUDGE OF APPEAL
J.O.NYARANGI
.................................
JUDGE OF APPEAL
J.M.GACHUHI
..................................
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR
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