Bench Bulletin - Issue 12 - Kenya Law Reports

KENYA LAW REPORTS
BENCH BULLETIN
FROM THE COURTS — COURT OF APPEAL
Procedure For Production of Exhibits
Chris Kasamba Karani V Republic
Criminal Appeal No. 26 Of 2008
Tunoi, Bosire & Onyango Otieno, JJ A
Court of Appeal at Nakuru
May 28, 2010
Reported by Njeri Githang’a
Case History
(Appeal from a judgment of the High Court of Kenya at Nakuru (Koome & Kimaru, JJ.) dated 24th January, 2008 in
H.C.CR.A. NO. 199 OF 2004)
The Hon. Mr. Justice
P. K. Tunoi
Criminal Practice and Procedure- second appeal-appeal against conviction and sentence -
appellant convicted of robbery with violence-appeal restricted to matters of law- circumstances
under which an appellate court would interfere with the decision of the superior court-Criminal
Procedure Code (Cap 75) section 361
Criminal Practice and Procedure-exhibits- procedure for production of exhibits- need for
an exhibit to be identified before being produced as evidence-where an exhibit was irregularly
produced-where the irregular production of the exhibit did not affect any ingredient of the
offence- where the court could still have enter conviction without the weapon being produced
as exhibit - whether the appeal could be allowed on that ground in circumstances
Criminal Practice and Procedure-trial process-judgment and sentencing-trial court required
to receive mitigating circumstances after finding the appellant guilty before proceeding to
pronounce sentence- mitigating circumstances on record would be of importance when assessing
an appropriate sentence on appeal
Evidence-identification evidence-principles that the court had to take into when dealing with
evidence of identification where the accused claimed it was mistaken identity- appellant caught red handed-whether
there was proper identification
The appellant had been charged with robbery with violence contrary to section 296 (2) of the Penal Code. After full
trial, he was convicted and was sentenced to death. His appeal to the High Court was dismissed resulting to a second
and final appeal to the Court of Appeal.
It was argued that the High Court erred in law by sustaining the finding of the subordinate court despite the testimony
of PW1 and PW2 being deficient of credibility. It was submitted that there was no proper identification of the appellant.
It was further argued that the High Court erred in law by sustaining the finding of the subordinate court despite of the
exhibits being produced contrary to the law.
Held:
1. By dint of section 361 of the Criminal Procedure Code, the court was enjoined to consider only matters of law. The
court could not interfere with the decision of the superior court on facts unless it was demonstrated that;
a. the trial court and the first appellate court considered matters they ought not to have considered or
b. they failed to consider matters they should have considered or
c. looking at the evidence as a whole, they were plainly wrong in their decision, in which case, such omission or
commission would be treated as matters of law.
Whether PW1 and PW2 were credible witnesses were matters of fact and the court would be very reluctant to interfere
with the concurrent findings of the two courts on such matters.
2. The guidelines as regards the principles that the court had to look into when dealing with evidence of identification
where the accused claimed it was mistaken, including that of identification by recognition were;
a. Where the only evidence against a defendant was evidence of identification, or recognition, a trial court was
enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were
favourable and free from possibility of error before it could safely make it the basis of a conviction.
b. Recognition could be more reliable than identification of a stranger but mistakes in recognition of close
relatives and friends were sometimes made.
3. The appellant had been caught red handed and his defence which was rejected after due consideration by the two
court’s below was indeed ousted by clear and credible evidence adduced by the prosecution.
4. Exhibit 1 had been irregularly produced. Following the correct procedure in law, PW2 should have identified
that exhibit and it should have been marked for identification before PW3 produced it as exhibit. However nothing
turned on that irregularity because the production of that exhibit did not affect any ingredient of the offence. The
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Issue 12: April-June 2010