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Judge frees accused in 'mistaken identity' case

By Wahome Thuku | September 29th 2014

Julius Chacha Masia was operating a currency changing business in Isebania township of Kuria West District in Migori County.

The town is at the border of Kenya and Tanzania. Early last year, Masia, nicknamed Tall, and one Samson Chacha Mwita alias Kipepeo, were arrested and charged with breaking into a shop at Isebania and stealing cash.

They were accused of having broken into the shop on the night of October 4 and 5, 2012 and stealing Sh951,700 and Tanzanian Sh28.5 million. They were arraigned before a magistrate court at Kehancha.

During the trial, the shop owner explained that on the material night he locked up his shop but the following morning he was informed by the watchman that two men, one called Tall and the other Kipepeo, had been hovering around the shop.

The owner confirmed the shop had been broken into through the roof, the safes opened and cash stolen.

He told the court he knew Kipepeo as he had broken into his shop before and stolen money, which he promised to repay.

The court heard that the accused were tracked down and arrested by a local vigilante group called Sungu Sungu.

The group interrogated Kipepeo at a community meeting and he implicated Masia alias Tall in the crime.


The witness said he also knew Masia, as he used to operate a money changing kiosk within his shop. He told the court that Masia had disappeared from the area after the incident and was arrested five months later.

Such incidents had then reduced but when Masia returned to the area, the wave of robberies started again and nine shops were broken into.

The watchman said when he reported to work at 9pm, he was greeted by Masia who was dressed in a black trench coat. Later at 1am, as he was on patrol in the back street, he saw Masia again still dressed in the trench coat. Masia then went away to another building, changed his clothes and came back dressed in a normal shirt and neck cap.

“He talked to me and told me that money was scarce,” the watchman narrated.

He said Masia then went to the front of the shop and started making calls and he never saw him again. The watchman told the court at around 2am he met the son of the shop owner, who told him that he had met two men carrying a ladder. One of the men was tall and the other was shorter.

The shop-owner’s son also testified. He told the magistrate he had locked up the shop the previous day and headed home.

The following day he found his father at the vandalised shop. He told the court that he knew Masia as Tall.

Another watchman testified that on the same night he saw a young man coming from the alley used by hawkers. He also noticed a ladder pushed against the wall. He called his colleague and they took the ladder.

He told the court he saw a tall person wearing a black coat and a hat but did not see his face. He said he did not know Masia, but the person he saw was of the same height.


The court also heard evidence from another witness in charge of community policing in Isebania who assisted the investigation officer in the arrests.

In his defence, Masia confirmed he was a money changer and a hawker. He told the court he had been arrested on February 2, 2012 for doing business in a prohibited area. He denied any knowledge of the crime.

After carefully analysing the evidence, Senior Resident Magistrate C M Kamau concluded that Masia was one of those who had had broken into the shop.

On October 31, last year, Masia was convicted and sentenced to serve a jail term. Mwita, his co-accused, was acquitted for lack of evidence.

Masia filed an appeal at the High Court in Kisii. He challenged the conviction on grounds that he had not been identified by any witness as the person who committed the offence and there was nothing to connect him to the crime.

The State opposed the appeal, maintaining there was sufficient evidence on which the magistrate relied to convict the man.

Although the evidence was circumstantial, it was solid enough to implicate the appellant.

Presiding Judge David Majanja acknowledged that the conviction was based on circumstantial evidence as no one saw Masia break into the shop. The only evidence placing Masia at the scene was that of the first watchman.

“While there was suspicion he would have been the person seen in the vicinity, it is also possible the facts presented could be interpreted in the appellant’s favour,” the judge said.

Majanja considered that Masia was a money changer. He considered the watchman’s evidence that at 2am boda boda people were still operating and it could be possible Masia was still carrying out his business as Isebania is a border town.

“He was not a stranger in the area as he operated within the vicinity. His appearance in the area could not be termed as strange or suspicious,” the judge concluded.

“No evidence was led to show that the appellant was away from the area for any other reason other than as a result of guilt. The investigating officer did not make an effort to look for him immediately after the offence was committed,” said Majanja.

Quoting an earlier case, the judge added, “Suspicion, however strong, cannot provide the basis of inferring guilt, which must be proved by evidence beyond reasonable doubt.”

Majanja held that just because the watchman had met Masia that night did not mean he committed the offence. He noted that the use of the terms tall, black coat and kofia (hat) was common and could refer to anyone else.

“This was a case where an identity parade would have been suitable. The evidence, in my view, was insufficient to implicate the appellant in the offence,” the judge concluded.

The conviction was quashed and the sentence was set aside last Tuesday. Masia was set free.

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