Joseph Onyikwa Nyariki v Republic [2019] KECA 1012 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a robbery conviction, confirming that strong daylight identification and voice recognition evidence can safely sustain a guilty verdict.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the circumstances prevailing at the material time were conducive to a positive identification of the appellant
- 2.Whether the failure of the complainants to give a prior description of the assailants vitiated the identification parade
- 3.Whether the identification parade was conducted in accordance with the law and the applicable Standing Orders, including the appellant retaining the same position in the line-up
- 4.Whether the voice identification of the appellant by PW2 was proper
Key legal issues
#Adequacy of the identification circumstances
The daylight at around 6:00 p.m. and the prolonged period of about 1½ hours with the assailants made the visual identification positive and free from error.
The Court found the complainants' unshaken evidence placed the encounter at around 6:00 p.m. when there was still daylight, and that they drove around Ruiru Town with the robbers for about 1½ hours. Contrary to counsel's submissions, there was no evidence it was rainy or that visibility was impaired. The daylight and the duration of interaction negated mistaken identity, and the trial court's finding of truthfulness was not disturbed.
Absence of prior description of the assailants
Failure to describe the assailants before the parade did not vitiate the parade; it affects only the weight of the identification evidence.
Relying on its earlier decision in Nathan Kamau Mugwe, the Court held that a witness who cannot describe an assailant but could recognise him on seeing him again should not be deprived of an opportunity of a properly conducted parade, and that police may put a suspect on a parade even without a prior description from witnesses. The relevant consideration is the weight to attach to the parade evidence.
Regularity of the identification parade
The parade was properly conducted under the applicable Standing Orders, and the appellant remaining in the same position did not impair the identification.
Standing Order 6(iv)(e) allows the accused to choose and to change position after each identifying witness; nothing showed the appellant requested a change and was denied. Jane was excused before Alfred was brought in, so there was no prejudice. The parade's purpose and the appellant's rights were explained to him beforehand.
Propriety of voice identification
The voice identification was proper because PW2 had conversed with the robbers for over 1½ hours, conditions precluded mistaken identification, and it was the appellant who uttered the words repeated by the parade.
In line with Standing Order 6(iv)(h), the whole parade was asked to repeat the words 'Toa ID yako' uttered on the material day. The Court applied the familiar conditions for voice identification: familiarity with the voice from prolonged conversation during the robbery, favourable conditions, and proof that the accused uttered the words. The voice identification corroborated Jane's visual identification.
Legal principles established
#- In a second appeal, the Court of Appeal is confined to matters of law and does not interfere with findings of fact by the two courts below unless those courts considered matters they should not have, failed to consider matters they should have, or were plainly wrong on the evidence.
- Where the only evidence against an accused is identification evidence, the court must ensure the evidence is cogent and free from possibility of error before sustaining a conviction.
- Failure by a witness to give a prior description of a suspect to the police does not necessarily render an identification parade invalid; it goes only to the weight of the identification evidence.
- An accused in an identification parade may retain the same position for successive identifying witnesses, subject to a right to change position after each witness; retaining the same position does not by itself impair the identification.
Court orders
#- 1.The appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A No. 138 of 2010
- Jurisdiction invoked
- Second appeal under section 361(1)(a) of the Criminal Procedure Code
Relief refused
#Quashing of conviction and sentence (setting aside the affirmance by the High Court)
The Court found the visual and voice identification of the appellant proper and safe to sustain the conviction
Costs
No costs order is recorded in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Under the law we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court
conviction on evidence of recognition or identification should only ensue when it is crystal clear and when there is no room for doubt, and hence possible error.
failure by the complainants to give a description of the assailants before the identification parade did not vitiate the identification parade.
the accused/suspected person will be allowed to take any position he chooses and will be allowed to change his position after each identifying witness has left , if he so desires.
Therefore, we agree with the two lower courts that the visual and voice identification of the appellant was proper and safe to sustain his conviction for the two counts of robbery with violence. Ultimately, the appeal herein lacks merit and is hereby dismissed.
Issues in the judgment
#The judgment appears to contain an internal inconsistency as to the time of the carjacking, with the narrative stating the complainants left the homestead at around 6:00 p.m. while the Court refers to the High Court's assertion of a different time.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Onyikwa Nyariki v Republic [2019] KECA 1012 (KLR)", Case Analysis (2019). Criminal Appeal No. 66 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1012/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.