‘Lack of familiarity’ earns duo ticket out of prison

By WAHOME THUKU

Identifying a criminal suspect by the victim of the crime or any other witness can make or break a case. Yet seasoned criminals know this and they ensure they cover or conceal their identity or traces.

In law, there is a difference between identification of a suspect (which applies to a stranger) and recognition which applies to an acquaintance, a close relative or friend.

Recognition is more reliable as evidence than identification of a stranger. But even when suspects fail to conceal their identity, other factors can still influence identification. Either way, the end result is a miscarriage of justice.

On a rainy December 18, 2001, Ms Priscilla Nduta alighted from a matatu at Mowlem Valley on Kangundo Road, Nairobi, at 12.45pm. The stage is called Pheloz.

As Nduta reached for her umbrella she was suddenly grabbed from behind by a man. The attacker slapped her across the face and her spectacles fell down.

He then snatched her handbag. Another man appeared at the scene and drew a knife on Nduta.

She screamed and one David Mwangi who was guarding nearby premises responded. The two assailants ran away with Nduta and Mwangi in hot pursuit.

One man jumped over a perimeter fence and the other ran in a different direction.

Nduta and Mwangi were positive that they recognised the two men who they had always spotted at the stage. They reported the incidence at Mowlem Police Post.

On either December 28 or 29, 2001, Nduta was passing by the bus stop when she saw the two men cooking food across the wall. She alerted Mwangi and asked him to keep an eye on them while she went to call the police.

Several officers led by PC George Ogola accompanied her to the scene and arrested the men. Nothing was, however, recovered from two suspects, whose names were Norman Ambichi Miero and Henry Kisinja Anjili.

The pair was charged before the Makadara magistrate’s court with violent robbery under Section 296(2) of the Penal Code.

Violent robbery

The charge sheet read that on December 18, 2001 at Mowlem Valley in Nairobi, armed with dangerous weapons namely knives they robbed Priscilla Nduta of a handbag, Sh7,775 in cash and a mobile phone — all valued at Sh12,500 — and used violence on her.

Nduta, Mwangi and PC Ogola testified. Nduta and Mwangi maintained they recognised the suspects since the robbery took place in broad daylight.

The charge sheet indicated that the two suspects were arrested on December 28, 2001, but the witnesses said it was on December 29, 2001.

The magistrate noted that even if it was raining, that alone would not have confused Nduta and Mwangi as they knew the men.

There was no mistaken identity.

Ambichi and Kisinja were convicted and sentenced to death. They appealed to the High Court and the case was heard by judges Jessie Lessit and Milton Makhandia.

The judges held that the conviction was based on evidence of recognition and upheld it. On July 5, 2005 the appeal was dismissed. The convicts moved to the Court of Appeal

Through lawyer Christopher Kenyariri, they argued that the High Court judges erred in law by relying on identification by recognition without considering the possibility of mistaken identity.

Mr Kenyariri submitted that the judges also erred in law by shifting the burden of proof of alibi evidence to his clients. They also erred in law by upholding the conviction against the weight of evidence. The State conceded to all the grounds

The Court of Appeal judges identified three issues for determination. First, they considered the discrepancy on the dates of arrest, between December 28 and 29, 2001.

"In our view, this was a minor discrepancy which was not addressed by the two courts below. We find that this anomaly did not cause the appellants any prejudice," they held.

The court then considered a claim that the appellants were not given an opportunity to recall two witnesses during trial before the magistrate. The judges said that as far as the courtroom processes of examination and cross-examination of witnesses were concerned, they were satisfied that the appellants were accorded a fair trial.

The third issue was on identification of the appellants by recognition. The guiding principles in this area of law were set up by the English Court of Appeal in the case of R v Turnbull and Others (1976).

The court must consider the length of time that the witness saw the suspect, the distance and the lapse of time between the date of the offence and identification of suspect to the police.

In this case, the scene was a matatu stage — a public place. There was a wall next to it where the appellants presumably cooked their meals as there was no evidence whether they also lived or worked there.

Nduta and Mwangi did not give names or any physical descriptions of the suspects to the police.

Failing eyesight

"This was important because the whole case was based on evidence of identification through recognition," the judges held.

And could Nduta’s eyesight have been affected when her spectacles fell down as not to properly see the attackers? There was no evidence about the intensity of the rain and whether it would have hampered identification.

"The evidence of how the two witnesses had developed familiarity with the appellants was also not evaluated," the judges pointed out.

With all these gaps in evidence, the judges concluded that the conviction was unsafe.

On February 24, this year, the conviction was quashed and the death sentence set aside. After 10 years in jail, Ambichi and Kisinja were set free.

The writer is a court reporter with the Standard Group

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