Case Metadata |
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| Case Number: | Criminal Appeal 28 of 1979 |
|---|---|
| Parties: | Njoroge v Republic |
| Date Delivered: | 15 Mar 1982 |
| Case Class: | Criminal |
| Court: | Court of Appeal at Nairobi |
| Case Action: | Judgment |
| Judge(s): | Eric John Ewen Law, Cecil Henry Ethelwood Miller, Kenneth D Potter |
| Citation: | Njoroge v Republic[1982] eKLR |
| Advocates: | Mr Gathenji for Appellant |
| Court Division: | Criminal |
| Parties Profile: | Individual v Government |
| County: | Nairobi |
| Advocates: | Mr Gathenji for Appellant |
| Case Summary: | Njoroge v Republic Court of Appeal, at Nairobi March 15, 1982 Law, Miller & Potter JJA Criminal Appeal No 28 of 1979 Evidence - evidence of identification - appellant identified by two witnesses - identification parade - innocent person also picked out in parade - assessment of reliability of evidence. Appeal - criminal appeal - effect of concurrent findings of facts of lower courts on second appeal - grounds of appeal on second appeal - powers of the court in second appeal. The appellant had been convicted in a magistrate’s court of robbery with violence and sentenced to the mandatory death sentence. His appeal to the High Court was dismissed and he made a second appeal to the Court of Appeal. The concurrent findings of fact in the two lower courts had been that the charge had arisen out of a bank robbery that involved a gang of robbers and which had occurred in daylight. Two eyewitnesses identified the appellant as one of the robbers and they had subsequently picked him out in identification parades. One of the witnesses, however, had also picked out an innocent person. It was submitted for the appellant that by having picked out an innocent person and having seen the person whom he had identified as the appellant for a very short time, the witness was unreliable and his evidence should have been rejected. Held: 1. On a second appeal, the Court of Appeal is only concerned with points of law. On such an appeal, the court was bound by the concurrent findings of fact made by the lower courts, unless those findings were shown not to be based on evidence. 2. It was a concurrent finding of fact that the appellant was correctly identified by the witnesses and the danger of identification by a single witness under conditions rendering identification difficult were not relevant. Appeal dismissed. Cases 1. Wendo v R [1953] 20 EACA 166 Distinguished 2. Roria v R [1967] EA 583 Distinguished Statutes Penal Code (Cap 63) Section 296(2) Advocates Mr Gathenji for Appellant |
| History Advocates: | One party or some parties represented |
| 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
AT NAIROBI
(Coram: Law, Miller & Potter JJA)
CRIMINAL APPEAL NO 28 OF 1979
NJOROGE .....................................................APPELLANT
VERSUS
REPUBLIC....................................................RESPONDENT
JUDGMENT
The appellant was convicted by the Resident Magistrate at Thika of robbery with violence contrary to Section 296(2) of the Penal Code and was sentenced to the mandatory death sentence. His appeal to the High Court was dismissed.
On this second appeal, we are only concerned with points of law and consider ourselves bound by the concurrent findings of fact arrived at in the courts below, unless shown to be based on no evidence.
The robbery out of which this appeal arises was a bank robbery carried out in broad daylight in the course of which some Kshs 350,000 was stolen from the Standard Bank at Thika by a gang of robbers one of whom at least was armed with a gun. On the concurrent findings of both courts below, the appellant was identified as the armed robber by two eyewitnesses, a cashier Mr Kariuki (PW 8) and a policeman who happened to be in the bank at the time, PC Sironga (PW 13). Both these witnesses subsequently picked out the appellant at properly conducted identification parades. Mr Kariuki at a subsequent parade also picked out a person who was not a suspect.
Mr Gathenji for the appellant submitted that by picking out an innocent man, Mr Kariuki had shown himself to be an unreliable witness whose evidence should have been rejected, especially as he had only seen the person whom he identified as the appellant for a very short time which he put at three seconds. The first appellate court had this aspect of the case very much in mind and gave it careful consideration. They held that Mr Kariuki’s evidence was reliable because he picked out the appellant at the identification parade and because his evidence of identification was supported by that of PC Sironga, who saw the appellant both inside and outside the bank and had picked him out of a parade. We are thus faced with concurrent findings of fact, based on evidence, that the appellant was correctly identified by two witnesses.
Although the robbery was of necessity attended by some degree of confusion, these concurrent findings of fact remove this case from the scope of such authorities as Wendo v R [1953] 20 EACA 166 and Roria v R [1967] EA 583 which were concerned with the dangers attendant upon identification by a single witness under conditions rendering identification difficult. In this case, on the concurrent findings of both courts below, the appellant was identified by two witnesses and there was evidence to support those findings, which are accordingly binding on this Court.
It follows that in our view, this appeal fails and must be dismissed, and we so order.
Dated and delivered at Nairobi this 15th day of March, 1982.
E.J.E LAW
.........................
JUDGE OF APPEAL
C.H.E MILLER
.........................
JUDGE OF APPEAL
K.D POTTER
.........................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR
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