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Court of AppealDismissedCriminal Appeal 103 of 2004

ROBERT KAMAU KARIUKI v REPUBLIC [2007] KECA 344 (KLR)

Court of Appeal of Kenya
4 May 2007
SBS.E.O. BosireEGE.M. GithinjiWDW.S. Deverell
1,502 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 confirmed a robbery conviction, holding that identification in broad daylight by a credible witness was enough despite the absence of an identification parade.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi, comprising Bosire, Githinji and Deverell, JJ, dismissed in its entirety the second appeal of Robert Kamau Kariuki against his conviction and sentence for robbery with violence contrary to section 296(2) of the Penal Code. The appeal lay from a judgment of the High Court at Nairobi (Mbaluto and Kubo, JJ) dated 16 February 2006, which had upheld the conviction imposed by the trial court. The offence was a midday robbery on 17 June 2001 at a residential house at Ololua Ridge, Karen, Nairobi, in which Laria Juliana Grant was marched into the house at gunpoint and robbed of cash, a mobile telephone, a jacket and car keys before the raiders ransacked the house and fled when a siren sounded. The appellant was arrested within the compound after Michael Lawrence Culley, the owner of the property, saw him running alone in a direction different from the other fleeing robbers and identified him; a gathered crowd prevented his escape. The conviction rested principally on Culley's visual identification, corroborated by two household employees who had seen a man dressed like the appellant. It was argued that the identification rested merely on attire, that no description was given to the police and no identification parade was held, that the robbery was too brief for reliable observation, that the defence was not fully evaluated, and that the appellant was an innocent passer-by. The court held that the appellant was clearly identified in broad daylight, that the trial court believed Culley having seen and heard him, and that the first appellate court had re-evaluated the evidence as required by Okeno v R. Finding the evidence disclosed at least seven robbers, the court saw no basis for faulting the superior court and dismissed the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the visual identification of the appellant, principally by Culley, was free from error and sufficient to sustain the conviction, or was based merely on his attire
  2. 2.Whether the failure to give a description of the appellant to the police, and the absence of an identification parade, vitiated the identification
  3. 3.Whether the short duration of the robbery made it difficult for eye witnesses to clearly and unmistakeably observe and identify the appellant
  4. 4.Whether the first appellate court re-evaluated the evidence as required of it on first appeal
  5. 5.Whether the appellant's defence was properly and fully evaluated by the two courts below
  6. 6.Whether the appellant, arrested within the compound of the raided house, was an innocent passer-by

Key legal issues

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01

Whether the visual identification of the appellant, principally by Culley, was reliable despite the complaints that it rested merely on attire, that no description was given to the police, that no identification parade was held, and that the robbery was brief

Holding

Yes. The appellant was clearly identified by Culley in broad daylight between 12 noon and 1 p.m. The trial court, which saw and heard Culley testify, believed him, and his testimony was corroborated by Rotich and Wekesa, who had seen a man dressed in a striped sweater and cap resembling the appellant's.

Reasoning

Both courts below concurrently found that Culley had ample opportunity in broad daylight to observe and identify the appellant as he ran alone in a different direction from the other fleeing robbers. The trial court had the advantage of seeing and hearing him testify and believed him. His evidence was corroborated by two household employees who had seen a man in a striped sweater and cap resembling the appellant's. The grounds of complaint raised did not displace these concurrent findings.

p. 3
02

Whether the first appellate court discharged its duty to re-evaluate the evidence

Holding

Yes. The High Court re-evaluated the evidence as required, considered both the prosecution and defence cases, and concluded that the conviction was based on sufficient and acceptable evidence; the Court of Appeal had no basis for faulting it.

Reasoning

Invoking Okeno v R, the Court affirmed that a first appellate court must re-evaluate the evidence. It found that Mbaluto and Kubo, JJ had done exactly that, considering both the prosecution and defence cases before concluding that the conviction rested on sufficient and acceptable evidence. Because the second attack was on findings of fact affirmed concurrently by the two lower courts, the absence of any basis for faulting the first appellate court was fatal to the appeal.

p. 3
03

Whether the appellant was an innocent passer-by, given that six people were seen inside the house and six were seen escaping by the security guards

Holding

No. Wekesa had seen a man dressed like the appellant enter the servants' quarters before finding six people in the main house, so there were at least seven robbers; the six seen by the guards were not the entire group, and Culley saw the appellant running in a different direction from the others.

Reasoning

Counsel for the appellant submitted that the six men seen inside the house were the same six seen escaping by the Ultimate Security guards, making the appellant a mere passer-by. The court rejected this: Wekesa saw someone in clothes resembling the appellant's enter the servants' quarters and then found six people in the main house. By simple computation there were at least seven robbers. The appellant's flight in a different direction, observed by Culley, further tied him to the raiding party.

p. 3

Legal principles established

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  • On a first appeal, the High Court is required to re-evaluate the evidence afresh, considering both the prosecution and defence cases, before reaching its own conclusion on whether a conviction is supported by sufficient and acceptable evidence.
  • A second appellate court will not disturb the concurrent findings of the trial court and the first appellate court, including on identification, where the trial court had the benefit of seeing and hearing the witnesses and the first appellate court has re-evaluated the evidence as required.

Court orders

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  1. 1.The appeal against conviction and sentence is dismissed in its entirety

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority
EG
majority
WD
majority
On appeal from
High Court of Kenya, Nairobi
H.C.CR.A. NO.1142 OF 2001
Jurisdiction invoked
Not expressly stated in the judgment; the appeal is described simply as a second appeal to the Court of Appeal ('has come to us on second appeal to challenge his conviction and sentence').

Relief refused

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Allowance of the appeal against both conviction and sentence for robbery with violence

The court found that the appellant was clearly identified by Culley in broad daylight, that the trial court believed the identifying witness, and that the first appellate court had properly re-evaluated the evidence as required; it agreed with State Counsel that the appeal had no merit.

p. 3

Costs

No order as to costs was made in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We have no basis for faulting that court. We agree with Mr. Kaigai, Senior State Counsel that the appellant's appeal has no merit. It is accordingly dismissed in its entirety. Order accordingly.
p. 3Final orders - second appeal dismissed in its entirety
The first appellate court clearly re-evaluated the evidence as required of it (see Okeno v. R [1972]EA 32), considered both the prosecution and defence cases before coming to the conclusion that the appellant's conviction was based on sufficient and acceptable evidence.
p. 3Duty of the first appellate court to re-evaluate the evidence
The appellant was clearly identified by Culley. The witness was believed by the trial court which had the benefit of seeing and hearing him testify.
p. 3Visual identification in broad daylight and deference to the trial court's advantage
From simple computation, there were at least seven robbers. Six of those are the ones the security guards saw. The appellant was seen by Culley running in a different direction. There is clearly no merit in that submission.
p. 3Rejection of the innocent passer-by submission

Issues in the judgment

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minor

The cause is numbered 'Criminal Appeal 103 of 2004', yet the judgment states it is an appeal from a High Court judgment dated 16th February 2006; the Court of Appeal number predates the decision appealed from, indicating a typographical error in either the appeal number or the date.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "ROBERT KAMAU KARIUKI v REPUBLIC [2007] KECA 344 (KLR)", Case Analysis (2007). Criminal Appeal 103 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/344/eng@2007-05-04

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