Elizabeth Wangui Maina v Republic [2020] KEHC 6741 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NUMBER 147 OF 2012

ELIZABETH WANGUI MAINA......................................APPELLANT

VERSUS

REPUBLIC.......................................................................RESPONDENT

(Being an appeal against conviction and sentence of Hon. J. Mwaniki PM on 9th July 2012 in Nakuru Chief Magistrate’s Court Criminal Case  Number 1533 of 2010)

J U D G M E N T

1. This appeal turns on whether there is evidence of identification to the required standard.

2. The appellant Elizabeth Wangui Maina was charged with another with two (2) counts of Robbery with Violence Contrary to Section 296 (2) of the Penal Code.

1.  PETER WARUTERE NGIGI 2.  ELIZABETH WANGUI MAINA

On the 9th day of January 2010 at Kampi ya Moto of Nakuru District within the Rift Valley Province with others not before Court, while armed with dangerous weapons namely AK 47 rifle robbed JAMES MAINA NJENGA  a motor vehicle Registration Number KAU 458W make Mitsubishi Fuso Fighter White in Colour valued at Kshs. 1. 8M, driving licence, cash Kshs. 500/= mobile phone make Motorola L7 valued at Kshs. 9,000/- all valued at Kshs. 1,809,000/= and at or immediately before or immediately after the time of such robbery used actual violence to the said JAMES MAINA NJENGA.

COUNT II

ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296(2) OF THE PENAL CODE.

1.  PETER WARUTERE NGIGI 2.  ELIZABETH WANGUI MAINA

On the 9th day of January 2010 at Kampi ya Moto of Nakuru District within the Rift Valley Province with others not before Court, while armed with dangerous weapon namely A. K. 47 rifle robbed Samuel Maina Kihara of mobile phone make Nokia 1200 valued at Kshs. 3,000/= a driving license, cash Kshs 200/= all valued at Kshs. 3,200/= and at immediately before or immediately after the time of such robbery used actual violence to the said Samuel Maina Kihara.

3. The prosecution called five (5) witnesses.

4. At the close of the case for the prosecution the learned trial magistrate acquitted the1st accused person under Section 210 of the Criminal Procedure Codefor lack of evidence but found that the appellant had a case to answer and placed her on her defence.

5. Plea was taken on 17th March 2010 and the trial took off on 24th November 2010 before Hon. W. Korir SPM (as he then was).  He heard three (3) witnesses. On 5th August 2011 it proceeded before Hon. B. Atiang PM.  He heard PW4. On 15th March 2012 it proceeded before Hon. J. Mwaniki PM, he heard PW5 and the defence.

6. The case for the prosecution was that James Maina Mwangi PW1, was the owner of motor vehicle registration KAU 458W Lorry Fuso Fighter which he engaged in transport business.  PW2 Samwel Maina Kihara was his turn boy at the material time.

7. In his testimony PW1 told the court that on 8th January 2010 a woman approached him to hire the lorry to transport household goods from Kampi ya Moto to Section 58 in Nakuru.  It was at midday.  He was alone at the lorry.  They agreed at Kshs. 7,000/= and she left to discuss with her husband.  On 9th January 2010 about midday she rang him and told him her husband was in agreement, and they would go collect the goods at 2. 00 p.m.  He was to meet her and her husband at Midland Hotel.  Together with his turn boy they went to Midland Hotel.  They met lady and her husband.  They then left for Kampi ya Moto. In the lorry he sat with the lady and her husband.  They fueled at Kiamunyi.  They went to Kampi ya Moto.  They entered a rough road.  The husband told him to stop so that he could get some young men to help with the loading.  He alighted and made a call.  It was then a white saloon Toyota Corolla car arrived with four men.  One of them was in full Administration Police (AP) uniform and was armed with a firearm.  He was roughed up by the AP officer who forced him into the saloon car.  Shortly PW2 was brought in.  They were beaten, forced to drink some liquid and later dumped and tied up in some bushes where they were rescued by some ‘warden’ and a District Officer who took them to Rongai Police Station.  He was robbed of his Motorola L7, and driving licence.  He said he saw the woman clearly because he was with her for two (2) days but did not identify the other robbers.

8. He testified further that the CID officers were able to retrieve the lady’s phone number. That she called him from Safaricom number on 9th January, 2010 which he identified as 0728 958 369 from a print out that was shown to him in court.

9. On 11th March 2010 at 3. 20 p.m. he was called to Bondeni Police Station where he was informed that the lady had been arrested.  He was to identify her.  He attended an identification parade and identified her.  He said she must have stolen his lorry because she left with the robbers.  He said he had never seen the 1st accused (appellant’s co accused).  On cross examination by Mr. Cheche for the appellant he testified that he never stated in his statement that the appellant had stolen his lorry.

10. On identification and arrest of the appellant, he said he was present when the appellant was arrested, that he had given a description to the police at Rongai Police Station that she was brown and tall. When his statement was put to him, he retracted this and said he had not given any description to the police that it was the police who had tracked her and arrested her, that he first saw her at the police station.  That he met her at the flying squad offices two days before the identification parade at Bondeni Police Station.  That he knew she was the one when he saw her at the flying squad offices.  On re-examination he again retracted that and said he first saw her at the field when she went to hire his lorry, then when she came and said she was ready with the money, then at the police station after she was arrested.  That he was not present when she was arrested.

11. PW2 Samuel Mahinda Kihara testified that he was the turn boy for the PW1 at the material time.  His testimony is at variance with that of PW1 from the outset.  He testified that it was on 8th January 2010 at 2. 00 p.m. not midday, he was with the PW1 when the woman came to hire the lorry.  That it was hewho was called by PW1 to discuss the rates with her and she left her number with the PW1.  He described her clothes, black skirt, white blouse, grey jacket, but of significance that she had covered her head with a buibui.  He said they talked for ten (10) to twenty (20) minutes.  That on the  following day he accompanied PW1 to the Midland Hotel where they met the lady and her husband.  That she had changed clothes whose description he did not give and did not state whether or not she wore a buibui.  That he did not see her husband very well.  That he sat on the bed behind the driver’s seat while the lady sat with the driver and her husband in front.  That when they reached Kambi ya Moto, she is the one who told them to turn right to a certain homestead, which they didand her husband went to open the gate.  That it was then that a small car came and stopped in front of the lorry. That four (4) police officers in uniform who were armed with a firearm and handcuffs alighted from the said motor vehicle roughed up PW1, while one of them took the ignition key from the lorry, and another pulled him out and he fell and hit his head on the road.  As both he and PW1 were pushed into the small car he heard the police tell the man to drive the lorry car to the station and the two (2) motor vehicles moved into opposite directions.

12. 12. Inside the car he and PW1 were forced to swallow some liquid and he fell asleep. When he came to they were dumped in some bush and tied up. They were later rescued by some APs and he woke up later to find himself at Rongai Hospital.

13. He later went to Rongai Police Station, and Central Police Station where his report was booked.  He was robbed of mobile phone Nokia 1200 valued at Kshs. 3,000/= and his wife’s phone, Jacket, Safari Boots, and the driver’s driving licence.

14. He testified further that on 11th March 2010 he was told to go to Central Police Station.  There he said he saw the woman who had hired their lorry alight from a flying squad motor vehicle. He states in his testimony;

“I was asked whether I knew her and I said I knew her.  She was asked whether she knew me and she said she knew me.  She was asked to say what had happened to us.  I felt so bad and wanted to attack her.”

Later he went to Bondeni Police Station where the identification parade was held. He was asked to pick her out in the ID parade. He did so.

15. He had testified that the robbers had cut his shirt and vest and stuffed pieces of his vest in his mouth and had used other pieces to tie his mouth.  He testified that said his wife threw away these clothes.

16. On cross examination he told the court that he was not present when “Wangui” was arrested. That he saw the appellant at the flying squad office.  She was in a buibuibut at Bondeni Police Station when he attended the identification parade “she was dressed like a chokora”.  He said he never gave the police any description when he made his report, except to say she was a woman.  He could not explain the fact that the charge sheet indicated he had been robbed of one mobile phone, driving licence and Ksh. 200/=, as against his evidence in chief.  His statement also bore the disparity to his evidence in chief where he said only two (2) men alighted from the motor vehicle one in uniform and carrying handcuffs, but insisted that there were four (4) who were all in uniform.  He said he went to hospital the same day as he had been assaulted seriously but the P3 was filled on 18th March 2010.

17. PW3 No.xxxx PC Stephen Ngeny Simon’s testimony was startling in light of the testimony by PW1 and PW2.  He said he was at the material time attached to flying squad unit Nakuru and he was the investigating office in this case.  This is what he stated; on 10th March 2010;

“I was in the office when James Maina Njengaaccompanied by another person who he introduced as his conductor Samwel Maina came and told me on 9/1/2010 they were robbed of their motor vehicle registration No. KAU 458W Mitsubishi lorry white in colour.  They told me while in town they spotted one of the robbers who was a lady at Biashara Centre.  I accompanied them to Biashara Centre where I found the lady within the building.  The complainants showed me the lady and I arrested her and took her to Central Police Station where I locked her in the cells.  After interrogation on 11/3/2020 in company of my colleagues PC Chigiri the lady led us to the home of accused 1 and told us she was with her the day they robbed the complainant accused 1 lived near Bondeni.  We arrested him from his house and took him to Central Police Station.  On the same day we conducted an identification parade where both complainants identified accused 2.  Parades were conducted for accused 1 and he was also identified by the complainant.  The identification parades were conducted at Bondeni Police Station.” (Emphasis added)

It is evident that in direct contradiction to the testimony of PW1 and PW2, he testified on oath that the two (2) are the ones who identified the appellant for arrest, and that accused 2 led to the arrest of accused 1 as her accomplice.  In addition that accused 1 was identified in an identification parade by PW1, something PW1 denied, having testified that he had never seen the first accused before.  On cross examination he said he testified that identification parade was conducted for both suspects by PW4 Cl Abdullahi Aden.  That he was present when the two (2) identification parades were conducted.  That accused 1 was identified by PW1, accused 2 was identified by both PW1 and PW2.  He also said that apart from the identification there was no other evidence against the two (2) accused persons.

18. PW4 No. 232138 CIP Abdullahi Aday testimony also contradicted the testimony of PW1 and PW2. He testified that he conducted the identification parade on 11th March 2010 between 5:00pm and 5:25pm. There were two suspects one woman and one man.  There were four (4) witnesses.  The first witness PW1 identified accused by touching him. He spoke of a 3rd witness at the identitication parade but gave no name, and none testified as such. When he attempted to produce a copy of the identification parade forms for the 1st accused defence objected. The court overruled them and he proceeded to produce the same. He testified that he had two witnesses; James Mwangi and Simon Kihara but James Maina did not identify accused 2 , the appellant)  but Simon Maina did.  On cross examination by he told the court the 1st accused was not identified by the ‘3rd witness’, and that if the witnesses had seen the accused persons, the ID parade should not have been conducted.

19. Reading PW5’s No. 83906 PC Nicholas Chambali testimony begged the question whether he was in the same case with PW3, the arresting officer. PW5 testified that he was attached to the flying squad officers Nakuru and was also an investigating officer in this case.  That on 11th March 2020 at 6. 00 a.m. he got a report from OCS Menengai at Nakuru that one suspect was hiding at Bondeni Estate.  That he and other officers went there and arrested accused 1.  That he conducted identification parade and the accused 1 was identified by the complainants.  On cross examination he said he never arrested accused 2.  He did not know where she was arrested from. While PW3 testified that she led to the arrest of accused 2 (appellant) led to the arrest of accused 1, PW5’s testimony was that she was not present when he arrested accused 1.  While the  complainants’ testimony was that they did not see the man who was with the lady who hired the lorry very well, and even testified in court that they did not know the 1st accused, he testified that it is them who  gave him 1st accused’s description but they were not present when he was arrested.  That he was the first investigating officer immediately 2nd accused was arrested but did not know who identified the 2nd accused to the arresting officers.

20. The prosecution closed its case and the trial magistrate acquitted the 1st accused for lack of evidence and placed the 2nd accused the appellant on her defence.

21. In her defence the appellant described her arrest and the identification parade that led to her being charged with this offence. She denied committing the offence.

22. In his judgment delivered on 9th July 2012 the trial magistrate was convinced that the ingredients of capital robbery were established; the appellant stage managed the robbery, acted in concert with the other robbers who were armed with dangerous weapons and who injured the complainants. She was found guilty, convicted and sentenced to thirty (30) years imprisonment on each count.  The record shows that the trial magistrate recorded that the sentences were to ‘run concurrently i.e. together.’

23. Aggrieved by the conviction and sentence the appellant filed the petition through counsel on 19th July, 2012 on the grounds;

“1.   That your honour I pleaded not guilty to the charge.

2.  That your honour I beg your honourable court to have leniency on me.

3.  Your honour I am the breadwinner to the family of four (4) children and I am single mother since my husband remarried and my parents are old and not capable of the burden.

4.  That the Learned Trial Magistrate erred in law and fact in not considering her mitigation while passing the sentence which was manifestly excessive and harsh.

5.    That your honour I beg your honourable court to accord me a non-custodial sentence so as to cater for my children.

6.  That your honour the trial magistrate erred in law and fact and ignored the obvious contradiction in prosecution during the cross-examination with PW1 and PW2.

7.  That your honour I pray that this mitigation be allowed and sentence set aside.

a. She should be accorded a non-custodial sentence so as to cater for her children

b. The Trial Magistrate erred in law and fact and ignored the obvious contradiction in prosecution during cross examination with PW 1 and PW 2

c. This mitigation be allowed and sentence set aside

And supplementary grounds on 29th August 2019;

1.  THAT the Learned Magistrate erred in law and fact by relying on the evidence of identification yet the identification parade was flawed.

2.  THAT the Learned Magistrate erred in law and fact by relying on contradicted evidence.

3.  THAT the Learned Magistrate erred in law and fact by relying on the evidence of the mobile phone yet the owners of the phone numbers were not provided for.

24. In arguing the appeal Mr. Ombati challenged the evidence on identification and pointed out the contradictions in the case for the prosecution regarding the arrest of the appellant.  Further that the trial court relied on evidence about the appellant’s phone number without any proof it belonged to her.  He cited the cases; Gabriel Kamau Njoroge v Republic [1982 – 1988] I KARand Boniface Maina Gichuhi v Republic Nyeri Criminal Appeal Number 141 of 2000.

25. The prosecution through Ms. Nyakira opposed the appeal and urged the court to sustain the conviction and sentence.  She argued that the trial court was alive to the flawed identification parade, and gave that evidence its due weight.  That PW2 identified the appellant before the identification parade was conducted.  That appellant was identified by the two complainants at the scene of crime as the offence had happened in day time.  That they met twice, discussed the price before the attack so their minds were clear.  That in addition the appellant had given out her phone which was identified before she was charged.

26. In his rejoinder Mr. Ombati asked the court to note the passage of sixty eight (68) days before the arrest of the appellant and the fact that no evidence was tendered to prove that the alleged phone number was indeed hers.

27. The issue here is whether there was evidence of identification to support the conviction.

28. This is a first appeal.  SeeOkeno v Republic (1972) EA 372where it was stated;

“The first appellate court must itself weigh conflicting evidence and draw its own conclusion (SHANTITLAL M RUWALA V R, [1957] EA 57). It is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower courts’ findings and conclusions; it must make its own findings and draw its own conclusion only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witness.”

KIILU & ANOTHER –V- REPUBLIC [2005]1 KLR      174 the Court of Appeal stated;

An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence.  The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.

It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported.  In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.

29. The offence of Robbery with Violence is set out at Section 296(2)

“If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

30. It contains the elements of theft committed by a person who is either in the company of another; the robbers be armed with dangerous weapons; threatof violence and /or infliction of bodily injury.

31. In the case of Shadrack Karanja vs. Republic Criminal Appeal 119 of 2005;[2006] eKLR, the Court of Appeal stated as follows:

“The same issue was raised in Moneni Ngumbao Mangi vs. Republic Criminal Appeal No.141/2005 (UR) and this court examined in detail the essential ingredients of the offence of robbery with violence under Section 296(2) of the penal Code as analysed in Johana Ndungu vs. Republic, Criminal App. No.116/1995 (UR). After noting that the charge sheet in that case stated, as it does in this case, that the Appellant “robbed” the Complainant, the Court continued:-

‘The word “robbed” is a term of art and connotes not simply a theft but a theft preceded, accompanied or followed by the use of threat or use of actual violence to any person or property in order to obtain or retain stolen property. The predecessor of this Court so held inOpoya vs. Uganda [1967] E.A. 752. …’

As already stated there are three ingredients, any one of which is sufficient to constitute the offence of robbery with violence under Section 296(2) of the Penal Code. If the offender is armed with any dangerous or offensive weapon or instrument that would be sufficient to constitute the offence. Secondly, if one is in company with one or more other person or persons that would constitute the offence too. And lastly if at or immediately before or immediately after the time of the robbery he wounds, beats, strikes or uses any other violence to any person that would be yet another set to constitute the offence.”

The prosecution was expected to prove the ingredients of Robbery with Violence.

32. Were PW1 and PW2 robbed of a lorry?  (the theft part)

33. According to PW1 he used to have a lorry registration number KAG 458W Fuso Fighter, but his wife one Mary Muthoni was the registered owner.  He produced a copy of the log book marked MFI 1, saying that the original was with ‘the bank’ (no name) because he had taken a loan.  The first question here is whether this was sufficient evidence that the PW1 actually owned the said lorry now that it was never recovered.  This Mary Muthoni was never called as a witness to establish that this alleged fact was true.  The copy of the log book, which I did not find in the file, nothing on record to show that indeed the original log book was held by ‘the bank’ because of a loan.  The prosecution had an obligation to establish the existence of the lorry prior to its alleged theft.  The investigating officer did not investigate this and no copy of records was produced to prove this fact.  Hence from the word go, the prosecution did not establish this fact.

34. There was also no effort to prove the existence of the mobile phones here alleged to have been stolen from the complainants.  If they could produce print outs to try and prove that the appellant had a phone, they ought to have been able to produced evidence to show that they owned the alleged phones. Why was the same not done to establish that the two (2) PW1 and PW2 were owners of the phones they said they lost?  Since nothing was recovered, then it is difficult to simply take the complainants words that they had mobile phones and the same were stolen.

35. This also applies to the driving licence. PW1 testified that he was robbed of his driving licence, but PW2 said he was the one carrying PW1’s driving licence and it was stolen from him.

36. PW2 gave graphic evidence of how his shirt and vest were cut by the robbers to gag him and also cover his mouth.  He was rescued while wearing these torn clothes. How possible is it that the police only took possession of ropes that allegedly tied them but left the torn clothes, exhibits in this case for his wife to throw away? If indeed he made his report the same day he was rescued then the police were aware that his clothes were evidence of the violence meted against him. Why would they let him go away with them?

37. Were PW1 and PW2 together when the lady customer went to hire the lorry? PW1 said he spoke with the women alone about the price of transporting her good.  PW2 said he is the one who bargained with her.  PW2 said she was in a buibui.  PW1 never noticed that very significant fact.  Neither of them said whether she was in a buibui when she met them at Midland.  This creates doubt as to who they say they saw.

38. Was any liquid was administered to them to make them drowsy? PW1 said the liquid they were forced to drink gave him a stomach ache, PW2 said it made him sleepy and he could hardly walk.  PW1 then would have been able to give more detail of what happened in the car. But his testimony is scanty as he was conscious.

39. The two complainants could not agree in their testimony as to how many persons in police uniform confronted them? One, two or four?  It was in day light but the witnesses cannot seem to agree.  In addition, was it the appellant’s husband who said they stop so that he can get extra hands or was it the appellant who directed them to a homestead where her husband went to open the gate?

40. Coming to the central issue, how was the appellant identified and arrested.  It is important to note here that according to the investigating officer the only evidence connecting the appellant to the alleged robbery was the identification by the two (2) prosecution witnesses.

41. In Suleiman Kamau Nyambura v Republic [2015] eKLR, the Court of Appeal held the view that,

“In addition, and what is crucial in a criminal trial is also the requirement to prove… the need to positively identify the assailants in question…”

It is evident from the record that PW1 and PW2 cannot say with certainty that the lady and the man they allege to have hired their lorry were the robbers.  They did not participate in any way in beating them, or doing anything to them.  In fact PW2 says he only heard one of the APs order the man to drive the lorry to the police station.

42. Be that as it may in Wamunga v Republic [1989] KLR, the Court of Appeal warned;

“Evidence of visual identification in criminal cases can bring about the miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger.”

Earlier in Roria v Republic [1967] EA 583 & 584the court said;

“A conviction resting entirely on identity invariably causes a degree of uneasiness….”

In Maitanyi v Republic [1986] EA the court warned of the necessity to interrogate evidence of identification.

There is a second line of inquiry which ought to be made and that is whether the complainant was able to give some description or identification of his or her assailants, to those who came to the complainant’s aid, or to the police. In this case no inquiry of any sort was made. If a witness receives a very strong impression of the features of an assailant, the witness will usually be able to give some description. If on the other hand the witness says that he or she could not identify or recognise the person, then a later identification or recognition must be suspect, unless explained. It is for the magistrate to inquire into these matters.

43. In this case, the identification evidence is fantastic.  The investigating officer testified on oath that it was PW1 and PW2 who went to his office and told him they had seen the suspect in town.  That they led him to the arrest of the suspect the appellant, who in turn led them to the house of accused 1 whom they also arrested.  PW1 and PW2 said they were not present when appellant was arrested.  They do not know where or when she was arrested but were called to police station on 11th March 2010 to attend an identification parade.

44. PW5 adds to the fantasy by saying that he is the one who arrested accused 1 after a tip of that he was hiding in Bondeni and upon the prior description given by PW1 and PW2.  PW1 and PW2 said they had never seen accused 1 before.  They did not give any description to the police because they did not see him well.  The investigating officer also said that he was present at the identification parade and both PW1 and PW1 identified both the accused persons.  The identification parade master PW4 said that accused 1 was identified by PW1.  In this whole scenario, who is to be believed?

45. The identification parade was a parody in itself.  The witnesses testified that they had seen the appellant two days before the identification parade.  The PW2 even alleges to have engaged with her in conversation where she confessed to what she had done and he almost attacked her, the two (2) appeared for the identification parade.  If indeed these two (2) knew the appellant that well, why would they need an identification parade?  Why would they see the appellant, talk to her then pretend at the identification parade to pick her out from a number of identification parade members?  And if she was in a buibui when she met them, why would the police dress her like a chokora for the identification parade as stated by the PW2?  Clearly the person they allege approached them, and the person they pretended to identify in the parade and the person who ended up being charged would not have been the same person.  The PW1 and PW2 never gave any description to the police, and they said the police tracked and traced the appellant on their own? This is denied by the investigating officer.

46. Definitely the evidence on identification and arrest of the appellant falls far short of the expectation of the law.   It is contradictory and unreliable and cannot be used to support the conviction herein.  If indeed the PW1 and PW2 saw the appellant very well in the two (2) days they saw they were with her, then the rigmarole they went through just to ensure that they  had a positive identification would not have been.  And that rigmarole shatters any semblance of credibility in their testimony that they saw the appellant and could identify her.

47. It is the duty of the appellate court to remember that parties are entitled to demand of the court of first appeal a decision on both questions of fact and of law and the court is required to weigh conflicting evidence and draw its own inferences and conclusions, but bearing in mind always that it has neither seen not heard the witness and make due allowance for this.

48. A dock identification is generally worthless and the court should not place much reliance on it unless this has been preceded by a properly conducted identification parade.  A witness should be asked to give the description of the accused and the police should then arrange a fair identification parade.

49. I have considered very carefully submissions made before me and I am of the view that as the appellant’s conviction was based identification evidence that was hopelessly unreliable. This coupled with the incredible evidence on how she was arrested makes the conviction herein unsafe.

50. Having drawn those conclusions the appeal succeeds on both fronts. The conviction is quashed. The sentence is set aside and the appellant is to be set at liberty forthwith unless otherwise legally held.

Dated, delivered and signed at Nakuru this 23rd  day of April, 2020.

Mumbua Matheka

Judge

In the presence of:  Via Zoom

Edna Court Assistant

Ms Odero for state

Appellant present