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Court of AppealPartially AllowedCriminal Appeal No. 6 of 2001· [2001] KECA 58 (KLR)

1. Francis Kariuki Njiru & 7 others v Republic

Court of Appeal of Kenya
30 November 2001
ROR.S.C. OmoloSBS.E.O. BosireEOE.O. O'Kubasu
4,126 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal freed three robbery convicts because suspicion alone is not proof, while upholding convictions supported by stronger eyewitness evidence.

What this practically means

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Executive summary

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This is a consolidated second appeal by eight men convicted of robbery with violence contrary to section 296(2) of the Penal Code for the armed robbery of Dr. Joel Muthuri and his wife at their Meru home on 27th November 1993, in which cash, personal effects and a motor vehicle were stolen and both complainants wounded. Their first appeals to the High Court at Meru (Etyang J) having been dismissed, they appealed on five grounds: misdirection on identification, improper conduct of identification parades, reliance on repudiated or retracted confessions, failure to deal with alibi defences, and perfunctory evaluation of the evidence. The second appellant died pending the appeal, which abated under rule 68(1)(a) of the Court of Appeal Rules. The court reaffirmed that although identification entails examination of evidence, it raises a matter of law on second appeal, and that identification evidence must be scrutinized carefully and acted upon only if positive and free from the possibility of error. It held that the eyewitnesses' failure to describe the robbers to the police was a lapse, but not fatal given the prolonged observation under bright security lights. The appeals of the third, fourth and fifth appellants were allowed: the third and fourth had been convicted principally on dock identification and co-accused's statements, which fell short of the criminal standard despite strong suspicion, while the prosecution's failure to call the officer who conducted the fifth appellant's parade attracted the Bukenya rebuttable presumption. The appeals of the first, sixth, seventh and eighth appellants were dismissed; the seventh's confession was improperly admitted because the recording officer had earlier recorded a co-suspect's statement, but his conviction was sustained on other evidence. The successful appellants' convictions were quashed, their death sentences set aside, and they were ordered set at liberty unless otherwise lawfully held.

Key legal issues

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01

Whether the night-time visual identification of the appellants was positive and free from the possibility of error despite the witnesses giving no description of the robbers to the police.

Holding

The concurrent findings identifying the 1st, 6th, 7th and 8th appellants were safe: the failure to record descriptions was a lapse on the part of the investigating officers but was not fatal in the peculiar circumstances of prolonged observation.

Reasoning

The robbers took time ransacking the house, giving the eyewitnesses ample opportunity to observe them at close range under bright security lights and later by torchlight, over an episode lasting 20 to 30 minutes. Mere wounding of the witnesses did not impede their observation. Although the omission to elicit descriptions of the attackers was a lapse attributable to the investigation, the court held it was not fatal given the length and quality of the observation.

p. 4
02

Whether the identification parades were properly conducted, including the composition of parade members and voice identification.

Holding

Parade members need only be similar, not identical, to the suspect; the absence of a member with a similar swelling did not vitiate the parade, and a witness may properly ask members to shout to confirm voice identification.

Reasoning

The requirement is that members be as far as possible of similar age, height, general appearance and class of life as the suspect; demanding identical features would make a nonsense of identification parades. Where a witness claims to have identified a suspect by voice as well as sight, requesting parade members to shout is a legitimate means of testing the identification and carries probative value.

p. 4
03

The effect of the prosecution's failure to call the officer who conducted an identification parade (5th appellant).

Holding

Where the only evidence linking an accused is night visual identification, parade evidence is essential to test it; the unexplained failure to call the parade officer raised the Bukenya rebuttable presumption that his evidence would have been adverse to the prosecution, and the first appellate court's failure to consider this meant the evidence was not fully scrutinized.

Reasoning

Two witnesses claimed to have picked the 5th appellant at a parade, but the officer who might have conducted it was not called and no explanation was offered. Neither the trial nor the first appellate court considered this aspect, amounting to a failure fully to scrutinize the evidence concerning him. The presumption, coupled with the deficient scrutiny, rendered the conviction unsafe and the appeal was allowed.

p. 5
04

Whether a retracted confession could be relied upon against the 6th appellant.

Holding

A retracted confession may be acted upon where the court, considering all relevant circumstances, is satisfied of its voluntariness and truth; concurrent findings on voluntarity will not be disturbed on second appeal.

Reasoning

Both courts below made concurrent findings that the statement was voluntary, and this Court was satisfied that all relevant circumstances were taken into account as Tuwamoi requires. The confession contained graphic details of the planning and execution of the robbery, including matters ordinarily outside the knowledge of the police or anyone not involved, which corroborated the visual and voice identification and justified rejection of the alibi.

p. 5
05

Whether the 7th appellant's confession statement was properly admitted, given that the recording officer had earlier recorded a statement from a co-suspect.

Holding

The statement was improperly admitted: an officer who has recorded one suspect's statement is analogous to an investigating officer and its probative value was completely eroded, though the conviction was sustained on other evidence.

Reasoning

Applying the Njuguna s/o Kimani principle, an officer who records a cautioned statement acquires knowledge of the facts and becomes analogous to an investigating officer, unless the first statement is a general denial. The officer recorded the 6th appellant's statement on 21st February 1994 and the 7th appellant's on 22nd March 1994. Neither court below considered the objection; the statement was improperly admitted but the remaining identification evidence supported the conviction.

p. 6
06

Whether convictions founded principally on dock identification and co-accused's statements could stand (3rd and 4th appellants).

Holding

They could not: strong suspicion, however compelling, cannot substitute for proof beyond reasonable doubt, and the evidence fell short of the criminal standard.

Reasoning

The two appellants were convicted principally on dock identification and statements of co-accused naming them. Although the Court entertained very strong suspicion, based on the record including money recovered from them, that they participated in the robbery, the evidence fell short of the standard required in criminal cases. The Court observed that with proper investigation and prosecution they would have had no chance of escaping conviction, but allowed their appeals on concession.

p. 7
07

Whether the alibi defences were properly dealt with and whether the first appellate court's omissions were curable (6th and 8th appellants).

Holding

The 6th appellant's alibi was properly rejected because the totality of the evidence placed him at the scene; the 8th appellant's ownership claim over the stolen wrist watch having been dealt with by the trial court, the first appellate court's failure to allude to it was a curable omission under section 382.

Reasoning

The 6th appellant's alibi failed because the parade evidence, his retracted confession and the visual identification collectively placed him at the scene. As regards the 8th appellant, the trial court had dealt with and rejected his claim of ownership of the wrist watch; the superior court's failure specifically to allude to that claim caused no prejudice and was curable under section 382 of the Criminal Procedure Code.

p. 6

Legal principles established

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  • Identification evidence must be scrutinized carefully and acted upon only if the court is satisfied that the identification is positive and free from the possibility of error, with the surrounding circumstances considered.
  • The prosecution must elicit evidence of whether a witness observed the culprit's features and of any description of the culprit given to anyone, particularly the police, at the first opportunity; omission of such evidence may prove fatal depending on the circumstances.
  • On a second appeal under section 361(1) of the Criminal Procedure Code, the issue of identification of a suspect is a matter of law even though its correctness entails examination of evidence.
  • Where the prosecution fails, without explanation, to call the officer who conducted an identification parade, a rebuttable presumption arises that his evidence would have been adverse to the prosecution case.
  • A police officer who has recorded a cautioned statement from one suspect becomes analogous to an investigating officer and is not competent to record a confession statement from a co-suspect in the same case, unless the first statement was a general denial of the offence.
  • Strong suspicion of guilt, however compelling, does not discharge the prosecution's burden; evidence falling short of that required in criminal cases cannot sustain a conviction.
  • A witness who claims to have identified a suspect by voice as well as visually may properly request that identification parade members shout, to confirm the identification.

Court orders

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  1. 1.The appeal of the 2nd appellant (Ayub Kariuki Wamae) abated following his death, in terms of rule 68(1)(a) of the Court of Appeal Rules.
  2. 2.Appeals of the 3rd, 4th and 5th appellants allowed and their respective convictions quashed.
  3. 3.The sentences of death meted out to the 3rd, 4th and 5th appellants set aside.
  4. 4.The 3rd, 4th and 5th appellants to be set at liberty forthwith unless otherwise lawfully held.
  5. 5.Appeals of the 1st, 6th, 7th and 8th appellants dismissed in their entirety.
On appeal from
High Court of Kenya at Meru
H.C. Cr. Appeals Nos. 87, 88, 89, 90, 92, 93, 94 & 174/96
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code - second appeals lie against a decision of the High Court in its appellate jurisdiction on a matter of law only

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (18)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "1. Francis Kariuki Njiru & 7 others v Republic", Case Analysis (2001). Criminal Appeal No. 6 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/58/eng@2001-11-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.