|Criminal Appeal 168 of 1985
|Ngumi v Republic
|20 Feb 1987
|Court of Appeal at Nakuru
|John Mwangi Gachuhi, Harold Grant Platt, Alister Arthur Kneller
|Ngumi v Republic eKLR
Ngumi v Republic
Court Of Appeal, at Nakuru
February 20, 1987
Kneller JA, Platt & Gachuhi Ag JJA
Criminal Appeal 168 of 1985
Criminal Law- Robbery with violence contrary to section 295(2) of the Penal Code – evidence – inconsistency in identification.
The appellant was convicted of robbery unit violence contrary to section 296(2) o the Penal Code.
His first appeal to the High Court was dismissed and conviction confirmed. It transpired during the trial at the subordinate court that the whilst the complainant in an unofficial identification identified the complainant she did not tell her neighbour on the night of the robbery when she reported the incident to him.
1. The trial court ought to have recalled the complainant to explain why she did not complain to her neighbour who gave the shelter that night.
2. Failure by prosecution witness to give details of alleged description of the appellant was important evidence of inconsistency in the witness identification or recognition of an accused.
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REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
CRIMINAL APPEAL NO 168 OF 1985
(Appeal from the High Court at Nakuru, Bennet J)
February 20, 1987, Kneller JA, Platt & Gachuhi Ag JJA delivered the following Reasons for the Judgment of the Court.
The High Court confirmed the conviction of this appellant (who was the fourth accused at the trial), on the first account of robbery with violence contrary to section 296(2) of the Penal Code.
The learned judge in very economical terms set out the case against the appellant. It was that the complainant Wanjiku PW 1 knew the appellant as a barber in that area, and recognized him that night, when he entered Wanjiku’s house, assaulted and robbed her. She described him to the police. Unfortunately, although the complainant recognized the appellant at the police station, in what seems to have been an unofficial identification parade, she did not tell her nieghbour that she had recognized the appellant when she reported the incident to him on the night of the robbery. Neither the trial court nor the High Court considered this aspect of the appellant’s identification. The trial court ought to have had Wanjiku recalled to explain why she did not complain to her neighbor, Kiunju Gachoka, who gave her shelter that night. It is noticeable that the Inspector Fredrick Mwaura PW6 did not give the details of the alleged description of the appellant to him. This is important evidence of consistency in the witness’ identification or recognition of an accused. Indeed the learned judge stressed that Wanjiku had described the appellant to the police. Where is the record of that description and did it describe the appellant?
What one could have expected was that Wanjiku said that she had been robbed by the barber in Maringo Settlement Scheme. But the police officer did not say so. We agree with the appellant that his complicity was not satisfactorily proved.
The Principal State Counsel did not support the appellant’s conviction. His conviction was therefore quashed, sentence set aside and the appellant was set at liberty unless held for any other lawful cause.
February 20, 1987
KNELLER JA, PLATT & GACHUHI AG JJA