IN THE COURT OF APPEAL

AT MOMBASA

(CORAM: TUNOI, GITHINJI & ONYANGO OTIENO, JJ.A)
 
CRIMINAL APPEAL NO. 119 OF 2003
 
BETWEEN

KESI KENGA MSEKE ……………………………………..1ST APPELLANT

KASENGE CHEA THOYA ………………………………...2ND APPELLANT

AND

REPUBLIC ………………………………………………..……RESPONDENT

(Appeal from the Judgment of the High Court of Kenya at Mombasa (Ouna, J & Khaminwa, Comm. of Assize) dated 20th May 2003 in H.C.Cr. Appeal Nos. 17 & 18 of 2002)

JUDGMENT OF THE COURT

The two appellants, KESI KENGA MSEKE and KASENGE CHEA THOYA , were after trial convicted of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death. Their first appeals to the High Court of Kenya at Mombasa were dismissed on 20th May 2003 by Ouna J. and Hon. Khaminwa, Comm. of Assize (as she then was) and hence this second appeal.

The facts presented by the prosecution to the trial court may briefly be stated thus. On 26th November, 2000, the complainant, Charo Karema (PW1) sold his cows and goats at a local market for Kshs.12,000/-. He expended part of the proceeds to buy goods for his two wives. In the evening, at about 7.00 p.m., while he was engaged in an animated conversation with them in his house which was lit by a tin lamp commonly known as “taa ya kobo”, the door was kicked open and suddenly two people armed with a knife and a stick burst in. They kicked the tin lamp and the house was plunged into darkness. They attacked the complainant and threatened to kill him if he did not give them money. It is apparent that the complainant only parted with the money after he had been seriously injured.

The complainant testified that before the tin lamp was knocked off, he was able to identify the two appellants as his assailants.

Mr. Buti for the appellants has challenged their convictions on the ground that the mentions before the trial court were done in the presence of a police constable, a person not qualified to act as a prosecutor, under section 85 of the Criminal Procedure Code and that the charge was duplex. Mrs. Mwangi for the Republic, however, urges us not to uphold the conviction of the 2nd appellant KASENGE THOYA since, according to her, he was not properly identified as one of the two persons who robbed the complainant.

As far as we are concerned, the main issue in this appeal is whether the appellants were positively identified as the two persons who viciously attacked and robbed the complainant in his house during the fateful evening.

The house or room, whose size has not been given, was lit by a single tin lamp which was kicked and put out immediately the robbers entered. There was no other kind of light in the house and the robbers disappeared soon after the robbery. To our mind, these conditions were not favourable to proper identification and the chances of a mistake in identifying the robbers cannot be completely ruled out. In the circumstances, the convictions are unsafe. The failure by the trial and the first appellate courts to make any finding on the issue of identification was also fatal to the conviction. As the issue of identification is sufficient to dispose of this appeal, we need not revisit other issues raised by Mr. Buti.

In the result, the appeal is allowed, the convictions are quashed and the sentences of death are set aside. The appellants shall be entitled to their liberty forthwith unless they are lawfully held.

Dated and delivered at Mombasa this 21st day of January 2005

P.K. TUNOI

………………………

JUDGE OF APPEAL

E.M. GITHINJI

……………………..

JUDGE OF APPEAL

J.W. ONYANGO OTIENO

…………………………….

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR