WILLIAM ISABOKE & JAMES NYASEMI NYAIKONDO v REPUBLIC [2004] KEHC 221 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

OF KISII

CRIMINAL APPEAL 67 & 68 OF 2004

(From original convictions and sentences of the Chief Magistrate’s Court at Kisii

in Criminal Case No.139 of 2003 - MR. A. INGUTYA ESQ., S.R.M)

1. WILLIAM ISABOKE

2. JAMES NYASEMI NYAIKONDO…………...........................................………… APPELLANTS

VERSUS

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

JUDGMENT

The two appellants WILLIAM ISABOKE and JAMES NYASEMI NYAIKONDO were convicted by SRM Kisii for the offence of assault and sentenced to serve five years imprisonment each.  Particulars were that on 25th December 2002 at Iyabe Location Central Kisii they jointly unlawfully assaulted WILFRED OKEMWA OBUTU occasioning him actual bodily harm.

The complainant (PW2) had told court that on the material day at 7. 30 p.m. he with Edwin and Obure were walking home when they met the two accused.  The two assaulted him.  Accused 1 cut him on the forehead with a knife and accused 2 hit him with a club on the right eyebrow.  He screamed for help.  He was able to flee.  He was taken to hospital.  Later he reported at Kisonso Police Post.

PW2 Omboga Obure said he was with the complainant when he was attacked.  They screamed for help and ran away.

Both appellants had denied assaulting the complainant.

There were no doubts that the complainant was attacked and assaulted.  PW1 the Clinical Officer who examined him found he had a cut wound on the forehead and an injury on the eyebrow.  PW2 & 3 said they identified the two appellants.  However from the evidence this seemed unlikely.  The incident took place at 7. 30 p.m. when it was already dark.  In fact PW2 on cross examination by 1st appellant told him that he did not even see the clothes he was wearing as it was dark.  He did not know any of the Appellant’s before and therefore it would have been difficult to properly identify their attackers.  The attackers were not many and thee was no evidence how they were able to pick the two from the grasp.  Indeed PW2 said that the attackers had a torch but they did not say the torch light was flashed on any of the appellants.

The conditions were therefore not suitable for positive identification and it was unsafe for the magistrate to base his conviction on such uncorroborated evidence.

In the circumstances I allow the appeal and quash the conviction and set aside the sentence.

Dated and delivered at Kisii this 3rd day of November 2004.

KABURU BAUNI

JUDGE

3/11/04

Mr. Kemo for state.

KABURU BAUNI

JUDGE.