The Court of Appeal has overturned the convictions and death sentences of two men who had been found guilty of a violent robbery that resulted in the death of a man at Sun Africa Bar in Isiolo in 2014.
Justices Jamila Mohammed, J. Lesiit, and Ali-Aroni set aside the convictions of Samson Mwingirwa and Michael Murungi, ruling that the evidence presented at trial fell short of the legal threshold for upholding a conviction, particularly on the issues of identification and recent possession.
The two had been charged and convicted of two counts of robbery with violence. The prosecution alleged they were part of a gang that broke into the bar on the night of August 5, 2014, stealing crates of alcohol, electronics, and other valuables worth over Kshs. 100,000, and fatally injuring a man identified as Karuru.
A key eyewitness, David Kinoti, claimed he saw one of the attackers by torchlight during the robbery. However, the appellate court ruled that the conditions for visual identification were unreliable, noting that there was no clear evidence about the size, brightness, or direction of the light. “Evidence of identification in difficult circumstances needs to be treated with utmost care,” the court said.
The judges also dismissed the prosecution’s reliance on a dying declaration allegedly made by the deceased victim, stating that medical witnesses confirmed the victim was gravely injured and likely incapable of speech when police claimed he named one of his attackers.
Further, while police said stolen items were recovered from the appellants’ homes, the court found no concrete proof that the goods mostly common household items belonged to the complainant. No receipts, serial numbers, or other definitive evidence of ownership were produced.
“The complainant should have produced the receipts with serial numbers… the items were everyday household items, and pointing them out was not adequate,” the bench observed in its judgment.
The High Court had previously upheld the trial court’s decision, but the appellate court found that both lower courts failed to properly assess the flaws in the evidence.
As a result, the court quashed both the conviction and sentence and ordered the immediate release of the two appellants unless otherwise lawfully held.
