EUNICE ISANYA v REPUBLIC [2004] KEHC 1122 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET. APPELLATE SIDE CRIMINAL APPEAL NO. 129 OF 2002 (Being an appeal against the Judgment of S. Wamwayi (Esq.), Chief Magistrate, delivered on 18th December2002 in Eldoret Chief Magistrate’s Criminal Case NO.5225 of 2001)

EUNICE ISANYA ………………………………………………………………………….APPELLANT

VERSUS

REPUBLIC………………………………………………….…………………………………..RESPONDENT

JUDGMENT

Eunice Isanya was charged with the offence of robbery with violence contrary to section 296 (2) of the Penal Code. She was tried, convicted and sentenced to suffer death.

She has now appealed against both the conviction and the sentence mainly on the grounds that the evidence upon which the learned trial Magistrate based the conviction was not corroborated, that she was not identified positively, that the Magistrate declined to accept her defence and shifted the burden of proof to her and that the prosecution did not prove its case beyond reasonable doubt.

The prosecution case was that, as the complainant (PW1) and her employee (PW2) walked to a shopping centre at around 8. 30pm on 2/6/2001, they were approached by a man and a woman. The woman pointed out PW1 to her companion by saying “ndio huyu huyo mama” (this is that lady) and then she jumped up and stabbed the complainant on the head, at which point, the complainant fell down. The woman then grabbed PW1’s handbag and sweater and the two assailants went away. PW2 screamed and people came to their aid. PW1 went to report the matter to the police after which she was taken to the hospital. Though she did not know her by name, it was a moonlit night and she claimed that was able to recognize her assailant as a woman who used to buy items from her kiosk. She was not able to recognize the man. According to PW2, who had accompanied PW1 at the material time and who witnessed the attack, the woman assailant had said “huyu ndiye mwanamke nilikuwa nikikwambia ”(this is the woman whom I was telling you about.) He was also able to recognize her as PW1’s customer at her kiosk.

At this stage, our task is to evaluate the evidence that was led by both the prosecution and the defence with a view to establishing whether or not this appeal is meritorious.

It is not an issue that PW1 was attacked on the material night and that her injuries were classified as simple harm.

We do note that though the descriptive features of the said Eunice were never given by PW1 while making her report, no identification parade was ever conducted at least to ensure that the said recognition was positive. Yet, the investigating officer (PW3) testified that upon learning that PW1’s assailant was known as Eunice, and on 12. 8.2001 while going through police records, he stumbled upon the name ‘Eunice’ being that of a person who had been charged with another offence. He then applied for a production order after which this appellant was produced on 22. 8.2001.

We ponder, and ask ourselves, how many Eunices would there be in Eldoret, and why did PW3 conclude that this appellant was the Eunice who had indeed attacked PW1. It was, in our opinion imperative that a parade be conducted with a view to eliminating any chances of mistaken identity.

In any event, and though she had given an unsworn statement we feel that the learned trial Magistrate should have given her defence due consideration, given the fact that the complainant and the appellant appear to have had long standing differences over PW1’s husband who the appellant also claimed to be her husband.

Given the fact that there was no identification parade as aforementioned and, we believe that had the learned trial Magistrate given her defence due consideration, he would have reached the conclusion that, there were serious lapses in the prosecution case and that the conviction, could not be warranted.

We thus form the opinion that the prosecution did not prove its case beyond reasonable doubts and we do in the circumstances allow this appeal, quash the conviction and set aside the sentence.

The appellant should be released forthwith unless otherwise held in lawful custody.

Dated and delivered at Eldoret this 22nd day of April 2004.

JEANNE GACHECHE

JUDGE

GEORGE DULU

JUDGE

Delivered in the presence of:-