IN THE COURT OF APPEAL
AT NAIROBI
CORAM: TUNOI, O’KUBASU, JJ.A DEVERELL, AG.JA.
CRIMINAL APPEAL NO. 167 OF 2003
BETWEEN
JOHN NJUGUNA KAMAU…….....….……………………..APPELLANT
AND
REPUBLIC………………………………………………..RESPONDENT
(Appeal from a convictio n and judgment of the High Court of Kenya at Nairobi (Mbaluto & Onyancha, JJ) dated 29 th May, 2003
in
H.C.CR.A. NO. 1285 OF 2001)
********************
JUDGMENT OF THE COURT
JOHN NJUGUNA KAMAU , the appellant, was on 6th December, 2001, convicted by the Senior Resident Magistrate, Kibera, of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death. His first appeal to the High Court of Kenya at Nairobi (Mbaluto and Onyancha, JJ) was dismissed and hence this second appeal.
The facts relied upon by the prosecution may briefly be stated. At about 9.00 p.m. on 10th July, 2001, Edward Mungai (PW1), was at a matatu bus stage at Kangemi when he saw a young boy urinating nearby. Suddenly, a gang of three youths emerged and demanded of the young boy why he was “spoiling the area”.The gang then attempted to get hold of the boy but the complainant intervened and warned the gang not to do anything to the young boy. The gang instead turned on the complainant, grabbed his tie and rained blows on him. It menacingly demanded money from him but when the complainant could not produce any, the gang thoroughly beat him using sticks and wooden boards. In the process the complainant’s right jaw was severely dislocated and he lost all his teeth. The gang thereafter frisked the complainant’s pockets and stole his money, a wrist watch, a driving licence, shoes and other personal effects. His screams attracted a good Samaritan who intervened. The gang then fled.
As the complainant was being rushed to the hospital, the motor vehicle carrying him passed by a petrol station to fuel. There the complainant saw his pair of shoes being displayed for sale. A report was immediately made to a nearby Police Station and it would appear that subsequently the appellant and two others who were acquitted after trial were arrested.
In his defence, in the form of an unsworn testimony, the appellant denied being at the matatu bus stage during the material time. He also denied being the person who was offering the complainant’s shoes for sale.
The main question raised in this appeal is whether the appellant was correctly identified as a member of the gang of youths that attacked and robbed the complainant during the fateful night.
The learned State Counsel, Mr. Kaigai Karundu, conceded the appeal on the ground that the evidence of identification cannot be safely accepted as free from the possibility of error and that the two courts below failed to direct their mind to this issue and consequently the appellant had been greatly prejudiced. With respect, we agree with Mr. Karundu.
Our perusal of the records of the two courts below shows that the issue of the proper identity of the appellant being a member of the gang was never considered. It is apparent, therefore, that this aspect of evidence was never cleared up, and is at least uncertain and unsatisfactory.
In all the circumstances of this case and especially those concerning the vital question as to the correct identity of the appellant, we have, after anxious consideration, decided that it would indeed be unsafe to allow the conviction to stand. We therefore allow this appeal, quash the conviction and set aside the sentence. The appellant is entitled to his liberty forthwith unless otherwise lawfully held.
DATED and DELIVERED at NAIROBI this 19 th day of November, 2004.
P.K TUNOI
………………………
JUDGE OF APPEAL
E.O. O’KUBASU
………………………
JUDGE OF APPEAL
W.S. DEVERELL
…………………………
AG. JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR