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Court of AppealDismissedCriminal Appeal 129 of 2009

DANIEL OWIGO APIYO v REPUBLIC [2012] KECA 151 (KLR)

Court of Appeal of Kenya
22 March 2012
1,672 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 that small contradictions in witness testimony don't undo a robbery conviction when witnesses recognised the accused.

What this practically means

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Executive summary

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The appellant was convicted by the Senior Resident Magistrate's Court at Homa Bay on four counts of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death. His first appeal to the High Court at Kisii (Musinga and Karanja, JJ) was dismissed by judgment dated 12th May 2009, the convictions being confirmed and the death sentence upheld. He then preferred a second appeal to the Court of Appeal at Kisumu on grounds that he was not properly identified by recognition, that admitted contradictions in the prosecution evidence created doubt, that the prosecution evidence was unsafe, and that a witness, Coletta, who was allegedly compellable, was not called to testify. The robbery victims, who were neighbours of the appellant, each recognized him as the leader of a gang of about seven robbers, some of whom posed as police officers; the appellant was said to have ordered the victims to call him 'Afande Daniel Owigo'. The Court of Appeal held that the witnesses knew the appellant well before the attack and that the inconsistencies relied on - mainly the description of his clothing and weapon - were of a minor nature and curable under section 382 of the Criminal Procedure Code. On Coletta, the Court found that since the bicycle she allegedly saw was never recovered or produced, her evidence would not have added any value. The Court rejected both issues of law raised and dismissed the appeal in its entirety, affirming the four convictions and the sentence of death.

Questions the Court framed

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

  1. 1.Whether the two courts below erred in finding that the appellant was properly identified by way of recognition
  2. 2.Whether the admitted contradictions in the prosecution evidence were fatal and created doubt falling short of the standard of proof required by law
  3. 3.Whether the failure to call Coletta, an alleged compellable witness, rendered the prosecution evidence unsafe

Key legal issues

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01

Identification by recognition

Holding

Recognition evidence of four complainants who knew the appellant, given over nearly an hour during the robberies, with his head-covering falling off and lighting available, safely supported conviction despite minor inconsistencies.

Reasoning

The Court of Appeal as a second appeal court defers to the concurrent findings of the two courts below unless shown they were erroneous. The complainants knew the appellant before the attack; the magistrate and the High Court both carefully considered the identification evidence and ruled out mistaken identification, citing the correct principles. The inconsistencies in description of clothing and weapon were minor and did not undermine the recognition evidence.

p. 3
02

Effect of contradictions in prosecution evidence

Holding

Contradictions of a minor nature that do not affect the substance of identification evidence are curable under section 382 of the Criminal Procedure Code and cannot vitiate a conviction.

Reasoning

Counsel for the appellant argued that inconsistencies in the witnesses' descriptions of the appellant's jacket and weapon were fatal. The Court accepted the State's submission that such inconsistencies were minor. Because all four complainants knew the appellant and recognized him as the leader of the gang, the discrepancies went to peripheral detail and were curable by statute.

p. 3
03

Failure to call a witness (Coletta)

Holding

The prosecution is not obliged to call a witness whose evidence would add no value to the case; omission of such a witness does not create doubt.

Reasoning

Coletta, a maid in the appellant's house, was said to have seen him with the complainant's bicycle, but the bicycle was never recovered or produced. Both courts below found her evidence would not have added value, and this Court found no basis for disagreeing. The failure to call a potentially compellable witness is only material where her evidence is relevant and would assist the defence.

p. 3

Legal principles established

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  • Minor inconsistencies in identification evidence that do not affect recognition of an accused are not fatal to a conviction and are curable under section 382 of the Criminal Procedure Code.
  • A witness whose evidence would not add value to the prosecution case need not be called; the failure to call such a witness does not render a conviction unsafe.

Court orders

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  1. 1.The appeal against the four convictions and the sentence of death be and is hereby dismissed

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kisii
H.C. Cr. A. No. 271 of 2006
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (appeal against conviction and sentence on robbery with violence contrary to section 296(2) of the Penal Code)

Relief refused

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Quashing of the four convictions and the sentence of death

The inconsistencies in the evidence were minor and curable; the witnesses recognized the appellant and Coletta's evidence would not have added value

p. 3

Costs

No costs order 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.

Those inconsistencies were of a minor nature and did not affect the recognition of the appellant by the four witnesses. The inconsistencies were and are curable under section 382 of the Criminal Procedure Code.
p. 3Contradictions in identification evidence
We are satisfied that the learned trial Magistrate carefully considered the identification evidence against the appellant and ruled out the possibility of mistaken identification.
p. 3Recognition evidence - concurrent findings
In those circumstances, we do not see what relevant evidence Coletta could have given in the case.
p. 3Failure to call a witness
The appeal wholly fails as to convictions and sentence and we order that it be and is hereby dismissed.
p. 3Final orders - disposition

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "DANIEL OWIGO APIYO v REPUBLIC [2012] KECA 151 (KLR)", Case Analysis (2012). Criminal Appeal 129 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/151/eng@2012-03-22

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