Robbery suspect walks to freedom in a case of mistaken identity

By Nyakundi Nyamboga

Mr Jackson Makworo arrived at his rural home from Nairobi at about 7.30pm. This was on September 7, 2006. At about 10.30pm he heard a loud bang at the door. In the twinkling of an eye, three people stormed in. He was at the time in the sitting room with his wife and children.

A big lantern illuminated the room. There was also moonlight outside the house. The three intruders had two torches and one of them had a homemade gun.

A struggle ensued and the thugs overpowered Makworo and injured him. He saw and recognised by voice one of the intruders. He mentioned his name, Moses Nkororo. Moses ordered Makworo be beaten and in the process, he was slashed with a panga on the head. The victim raised an alarm.

His wife too recognised the face and voice of one of the intruders — the appellant — who was forcing her under the bed to seek money. During trial, she testified the appellant wore a mask on his face; she saw his forehead, walking style and heard his voice. Neighbours rushed to the home as the intruders fled taking away the complainant’s mobile phone, valued at Sh6,000.

The complainant was taken to hospital and later reported the suspects to police in Keroka. Inspector Mathew Oberi arrested the appellant and charged him with the offence of robbery with violence. He told the court the complainant told him he knew the suspect’s name but never mentioned it to him. In the police records, the name that appears is Musa Nkororo Barare.

The appellant, a mason, pleaded not guilty to the charge.

His case was that he was asleep at home on the material date. He said a police officer went to his home on September 21, 2006 at 8.00pm and conducted a search but found nothing. He was arrested on October 1 and arraigned in court on October 3, 2006. He said the complainant singled him out due to village grudges and differences.

After trial, a Senior Resident Magistrate at Keroka convicted him of the offence of robbery with violence and sentenced him to death.

Through Ondieki & Ondieki Advocates, he appealed against conviction and sentence, the subject of the judgement by a two-judge Bench comprising justices Daniel K Musinga and JR Karanja. The lawyers cited 14 grounds of appeal, among them the appellant was a case of mistaken identity. The State did not oppose the appeal.

Offensive weapons

In a nine-page judgement, the Bench noted: "On our part, we are satisfied that the evidence was sufficient enough for the purpose of establishing material ingredients of the offence of robbery with violence contrary to section 296(2) of the Penal Code".

There was no dispute that the complainant was attacked and robbed by a group of people armed with offensive weapons that injured him. The offensive weapons included pangas (machetes) and a homemade gun. Mr Ondieki submitted that a panga is an ordinary item in a rural set up and cannot therefore be an offensive weapon.

Said the judges: "That may be so. However, all depends on the circumstances in which a person is found with a panga. In this case, the offender’s possession of the panga was intended for use in a criminal act and not any innocent or peaceful act. The pangas were in the circumstances offensive weapons."

And on the crucial issue is whether this was a case of mistaken identity, the judges held thus: "The alleged identification by recognition of the appellant was not free from the possibility of error or mistaken identity."

The prosecution evidence of identification was, therefore, unreliable and unsafe for the trial magistrate to rely upon to convict the appellant.

For starters, the alleged voice identification was unreliable because it was not confirmed by a subsequent identification parade.

The wearing of a mask by the offender is intended to conceal his identification. In the circumstances, it is improbable that the complainant was able to see and identify the appellant by face. The identification by walking style is a unique one out of the world of fantasy, said the judges.

They allowed the appeal with result that the appellant was set free.