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How suspects rely on identity loophole to win back freedom

By Allan Mungai | June 27th 2018

On January 22, 2012, Robert Onchiri was confronted by three armed men who robbed him of his Samsung mobile phone valued at Sh70, 000.

When he reported the robbery, Mr Onchiri told police that he was certain that although it had taken place at around midnight, he could identify one of the attackers.

He told the police that one of them was slim, tall and had long hair. This was corroborated by a technician who was arrested with the stolen phone’s memory card. He said one of the men who took the phone to him had long hair.

Three suspects - John Mwangi Macharia, Paul Maina and Michael Wanjohi Wachiuri - were later arrested and charged with robbery with violence.

The court found them guilty and sentenced them to death.

But the three appealed, and their convictions were set aside by High Court judge Abigail Mshila, who on October 19, 2017 ruled that the trial court had relied on unsatisfactory identification evidence.

Test description

Justice Mshila ruled that the lower court ought to have tested the description of the accused, the source of lighting at the crime scene, the length of time the witness observed them and whether the conditions were favourable.

The judge ruled that since the robbery had taken place at night, the conditions for identification were unfavourable and that Onchiri had not provided any peculiar identification features.

“This court concurs that their identification amounts to mere dock identification and finds that the appellants were not positively identified and the conviction is found to be unsafe,” the court decreed.

The ruling is one among many where suspects have walked free after Appeal courts questioned witness descriptions of their identity.

In another case, Mercy Muthoni and Joseph Nderitu’s death sentences for robbery with violence were overturned by Justice Rachel Ng’etich on July 26, 2017, after their lawyer, Wahome Gikonyo, successfully argued that the evidence relied on to identify the two was insufficient.

The pair had been tried and found guilty of carjacking Joseph Weru Murakaru and robbing him of a mobile phone and Sh18,000 at Lachuta Farm in Gatarakwa, Nyeri County, on September 12, 2013.

But Mr Gikonyo questioned how the complainant positively identified the two suspects during the trial, yet they were not known to him prior to the incident and no identification parade was conducted.

He further argued that the complainant had admitted that he never recorded the description he was giving in court in his statement.

Contradicting description

The lawyer submitted that the complainant contradicted himself in his description of the clothes that Ms Muthoni was wearing during the alleged incident, noting that at one point he said she wore a green dress and later, a blue suit.

State counsel Catherine Mwaniki conceded that the trial magistrate erred in failing to test the evidence of a single witness.

She submitted that there was no doubt whether the robbery took place but there was doubt whether the appellants were identified as the perpetrators.

“The investigating officer has confirmed that no identification parade was conducted but the prosecution relied on the evidence of identification by the victim,” said Ms Mwaniki.

She blamed the prosecution for claiming that the identification of the suspects was through recognition, yet the victim never gave the description of the perpetrators.

Among the reasons that Appeal courts give in overturning the sentences based on identification is that many witnesses to crimes are only able see the perpetrators briefly, making it possible for them to confuse faces seen at the scene of crime.

Freeing Jacob Kinyua Njeru and Paul Githinji Maina on August 3, 2017, Justice Teresia Matheka ruled that courts must test evidence to avoid the possibility of mistaken identification.

“There is nothing on the record to indicate that the trial court warned itself of the possible danger of mistaken identification due to the fact that no prior descriptions had been made to the police to corroborate the evidence of the arresting officers,” Justice Matheka stated.

The charges against Njeru and Maina stated that on August 13, 2011, they waylaid Michael Kilungu and Simon Githaiga at 5pm at Game Rock area in Nyeri and made away with Sh15,500 and two phones.

They were arrested five days later in an ambush by police.

According to the complainants, the men who robbed them had not covered their faces.

“As they walked away, they looked back and gave me a chance to see them properly,” Mr Githaiga said in court.

Police statements

The conviction and sentence were contested on the grounds that the witnesses had not given any description of the attackers in their statements to the police.

Police told the court that the complainants did not give any description of the suspects before the suspects’ identification parade.

The complainants, even though they had the description of the assailants in their minds, did not record them in their statements.

Justice Matheka ruled that it was necessary that a witness give the description of a suspect before an identification parade.

“It is evident from the trial court’s judgement that it gave a cursory look at the evidence of identification and despite the contradictions in the evidence of the two complainants, went ahead to rely on the same,” she ruled as she set the duo free.

Lawyer Gikonyo said dock identification was unreliable because there was a possibility that witnesses could conjure descriptions to implicate innocent people.

Distinct features

“If there are distinct features about your attacker, you should report them to the police at the earliest contact. You cannot go to court and say that this is my attacker if you had not said how you would identify him,” he said.

East African Magistrates and Judges Association Secretary General Bryan Khaemba said magistrates were not to blame for the overturning of judgements on grounds of unsatisfactory identification.

He argued that courts give utmost importance to identification evidence.

“The court has to be certain that it did not convict an innocent person and acquit a guilty one. You have to be certain that there is no room for a witness to conjure a description of the suspect,” he said.

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