WAFULA JUMA WANJALA & RICHARD WANJALA WAFULA V REPUBLIC [2010] KEHC 2414 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

Criminal Appeal 62 &63 of 2009

(Appeal arising from WBY SRM Cr. No.142 of 2008)

WAFULA JUMA WANJALA::::::::::::::::::1ST APPELLANT

RICHARD WANJALA WAFULA::::::::::::::::::2ND APPELLANT

~VRS~

REPUBLIC::::::::::::::::::::::::RESPONDENT

JUDGMENT

The Appellants Wafula Juma Wanjala and Richard Wanjala Wafula were convicted by Webuye SRM for the offence of robbery with violence contrary to section 296 (2) of the Penal Code and sentenced to suffer death in the manner authorized by the law.Both appealed to this court against the conviction.

In their petition of appeal filed by their advocates J. O. Makali & Company dated 04/06/09, they cite four grounds of appeal as follows:

a)That the Appellants were not positively identified.

b)That court relied on the evidence of a single witness and failed to warn itselfof the danger of such evidence.

c)The evidence of PW2 was taken without conducting the “voire dire” test.

d)That the defence of the Appellants was disregarded.

Mr. Ogoti, Senior Principal State Counsel conceded to the appeal on grounds that identification of the Appellants by the complainant was not positive.She said she saw the robbers with light from their own torches and through voice identification.The complainant had heard the Appellants talk elsewhere but not at the scene of crime.The state counsel was convinced that the finding of the magistrate in convicting the Appellants was wrong.

The facts of the case is that the complainant (PW1) was at home with her children on the material night.She was woken up by a loud bang and then saw flashing of torches inside her house.She identified the Appellants who are her brother-in-laws.The assailants robbed her of cash Ksh.105,000/= which cash was proceeds of sale of land.The two men were present when PW1 received the cash about three (3) days before the incident.The light from the torches of the attackers is what aided her to identify the Appellants.This is very unreliable kind of light in that the attackers will normally flash at their victims and not at themselves.As for the voice identification, it relates to the 2nd Appellant and not the first.It happened in the house of one Kinusu who is PW1’s brother-in-law where the 2nd Appellant was overheard saying that “that woman has a lot of money.”The identity of the woman was not disclosed in the conversation.The recovery of items produced as exhibits was from the house of other suspects who were not charged in court.

PW1 gave the names of Juma Simiyu and Richard to the police officer who testified as PW3. The names of the Appellants are Wafula Juma Wanjala and Richard Wanjala Wafula. Both were arrested in their houses andno recovery was made.In their defence the Appellants denied committing the offences and said that PW1 was framing the case against them.They said that they had informed the police of the frame-up.

In her judgment, the magistrate failed to addressthe issue of credibility of the complainant and the contradictions in the evidence.The conditions were not conducive for positive identification.It is doubtful that the complainant saw the Appellants in her house.The court failed to warn itselfon the danger of relying on a single identifying witness.A witness may be honest in her testimony but mistaken.It was the duty of the court to satisfy itselfthat identification was positive.

The complainant did not say that the attackers were armed until during cross-examination.As for the Appellants, there is no evidence that they were armed, even assuming that identification had been established.

It is our finding that the magistrate erred both in law and fact in convicting the Appellants.The case had not been proved to the standards required.We entirely agree with the state counsel on his observation.

The appeal must therefore succeed.We allow the appeal, quash theconviction and set aside the sentence.The Appellants are set at liberty unless otherwise lawfully held.

D. A. ONYANCHA

JUDGE

F. N. MUCHEMI?

JUDGE

Judgment dated and delivered on the 16th day of June, 2010.

In the presence of the Appellants, Mr. Luchivia for Mr. Makali for the Appellants and the State Counsel Mrs. Leting.

F. N. MUCHEMI

JUDGE