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Court of AppealAllowedCriminal Appeal No. 15 of 2014· [2015] KECA 208 (KLR)

Stephen Onyango Agwanda v Republic

Court of Appeal of Kenya
20 November 2015
David Kenani MaragaD.K. MaragaDMD.K. MusingaSKS. Gatembu Kairu
388 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man sentenced to death for robbery because the witnesses' identification of him was too unreliable to support a conviction.

What this practically means

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Executive summary

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The appellant was charged with robbery with violence contrary to section 296(2) of the Penal Code, arising from an incident on 7th April 2009 in which about ten intruders were seen in the complainant's cowshed, stones thrown at his house, and two head of cattle valued at Ksh.30,000 stolen. After trial he was convicted and sentenced to death; his first appeal to the High Court at Kisumu (Muchelule & Chemitei, JJ.) was dismissed on 10th December 2013, prompting this second appeal. In a short single judgment of the court delivered at Kisumu on 20th November 2015, the Court of Appeal agreed with both counsel that the appellant's identification could not be relied upon. PW1 never stated what made him recognize the appellant, and PW2 claimed recognition from the way he walked; the court doubted that a witness could identify someone by gait alone without seeing the face. Further, the brightness of the moonlight allegedly enabling the sightings was never given. These deficiencies rendered the identification doubtful and the conviction unsafe. The court allowed the appeal, quashed the conviction, set aside the death sentence, and ordered the appellant's immediate release unless otherwise lawfully held. No costs order was made and no authorities were cited.

Key legal issues

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01

Reliability of identification evidence

Holding

The appellant's identification could not be relied upon because neither witness gave circumstances enabling reliable recognition: PW1 did not say what made him recognize the appellant; PW2 relied on gait alone; and the brightness of the moonlight said to have aided identification was not established.

Reasoning

The court, perusing the record with the benefit of both counsel's concessions, found the identification evidence wanting. Recognition by gait without a clear view of the face is doubtful, and where a witness alleges moonlight enabled identification, the brightness of that moonlight must be described. These gaps rendered the identification unsafe and the conviction unsustainable.

p. 2

Legal principles established

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  • Where identification evidence is doubtful - for instance where the basis of recognition is not stated, gait alone is unreliable without seeing the face, and prevailing light conditions are not described - a conviction founded on it cannot stand.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction quashed
  3. 3.Sentence of death set aside
  4. 4.Appellant set free forthwith unless otherwise lawfully held
On appeal from
High Court of Kenya at Kisumu
H.C.CR.A. No. 94 of 2010
Jurisdiction invoked
Second appeal under the Criminal Procedure Code (Court of Appeal's appellate jurisdiction over High Court criminal appeals)

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, "Stephen Onyango Agwanda v Republic", Case Analysis (2015). Criminal Appeal No. 15 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/208/eng@2015-11-20

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