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Court of AppealDismissedCriminal Appeal 486 of 2007· [2010] KECA 31 (KLR)

George Nyakundi Bikeri v Republic

Court of Appeal of Kenya
26 November 2010
2,294 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed a robbery conviction, ruling that recovered evidence and ballistic links outweighed flawed identification parades.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Omolo, Waki and Onyango Otieno, JJAA) dismissed the appellant's second appeal against his conviction for robbery with violence contrary to section 296(2) of the Penal Code and the death sentence imposed by the trial magistrate on 7th July 2003, a conviction affirmed on first appeal by the High Court at Kisii (Bauni & Warsame, JJ.) on 27th November 2006. The appellant contended that the learned Judges of the High Court misdirected themselves in finding that the complainant, Rhoda, had identified him on identification parades, when in fact only his two co-accused were identified on parade and no parade form was produced in respect of him. The court agreed that the superior court misapprehended the evidence on identification, noting that any trial-court identification would have amounted only to unreliable dock identification. That misdirection, however, did not avail the appellant because the conviction rested on the evidence of Constable Kariuki that the appellant led him to the recovery of a G3 rifle from a kei-apple fence, which the firearms examiner matched to five spent cartridges collected at the scene. The court held that such evidence was admissible at trial under the then section 31 of the Evidence Act, the repealing Criminal Law (Amendment) Act No. 5 of 2003 having commenced after judgment. The appellant's assertion that the gun was found with one Alfred Ogero, who bribed the police, was an afterthought never put to the officer in cross-examination. The court declined to disturb the concurrent findings of the two courts below, which were supported by adequate evidence and not perverse, and reiterated that the prosecution need not call any particular number of witnesses.

Key legal issues

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01

Misdirection by the first appellate court on identification parades

Holding

The High Court erred in finding that Rhoda identified the appellant on the identification parades; only the two co-accused were identified, and no parade was conducted for the appellant. However, the conviction rested on other evidence.

Reasoning

Only two identification parade forms existed, in respect of the co-accused, none for the appellant. Any purported identification at trial would be mere dock identification. The misdirection did not avail the appellant because the conviction was founded on the recovery of the G3 rifle on his lead and ballistic linkage to spent cartridges from the scene.

p. 2
02

Admissibility of evidence of recovery of the rifle following the appellant's arrest

Holding

Such evidence was admissible at the time of the trial under the then section 31 of the Evidence Act, notwithstanding its subsequent repeal in 2003, because the trial concluded on 7th July 2003 before commencement of the amending Act.

Reasoning

The Criminal Law (Amendment) Act, No 5 of 2003, which repealed section 31 of the Evidence Act, was assented to on 18th July 2003 and commenced on 25th July 2003. The appellant's trial concluded with judgment on 7th July 2003, so the old law governed admissibility.

p. 2
03

Interference with concurrent findings of fact on second appeal

Holding

Both courts below accepted the evidence of Constable Kariuki that the appellant led him to the recovery of the G3 rifle; those concurrent findings were supported by adequate evidence and could not be disturbed.

Reasoning

The appellant's unsworn account implicating Alfred Ogero was rejected by both courts. The name of Ogero was never put to Constable Kariuki in cross-examination, making it an afterthought. The ballistic evidence connected the rifle to the robbery. Counsel did not contend the findings were unsupported or perverse.

p. 3
04

Failure to call certain witnesses

Holding

The prosecution need not call a particular number of witnesses; section 143 of the Evidence Act settles the point, and the uncalled witnesses' absence was irrelevant in the face of evidence accepted by the two courts.

Reasoning

Counsel for the appellant argued the failure to call Alfred Ogero, the owner of the home where the gun was found, and other officers. The court held such questions irrelevant given the accepted evidence, and that section 143 of the Evidence Act requires no particular number of witnesses.

p. 3

Legal principles established

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  • A second appellate court will not interfere with concurrent findings of fact of the two courts below unless it is shown that there was no evidence to support the conclusion or that the conclusion was perverse
  • There is no legal requirement that the prosecution call a particular number of witnesses; it is bound only to call such witnesses as will prove its case
  • Dock identification alone is not reliable evidence of identity

Court orders

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  1. 1.The appeal is dismissed
On appeal from
High Court of Kenya at Kisii
H. C. Cr. A. No. 206 of 2003
Jurisdiction invoked
Second appellate appeal under the court's ordinary criminal appellate jurisdiction (no specific provision stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "George Nyakundi Bikeri v Republic", Case Analysis (2010). Criminal Appeal 486 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/31/eng@2010-11-26

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