The front view of the Judiciary building in Nairobi, Kenya

KENYA: DEATH ROW SUSPECT SET FREE OVER GIRLFRIEND'S CONTRADICTORY EVIDENCE

July 13, 2023: Kenya Court of Appeal on July 7, 2023 granted the appeal of a man who had been sentenced to death for armed robbery.
In the ruling delivered by a three-judge bench consisting of Asike Makhandia, S. ole Kantai, and Mwaniki Gachoka FCIArb, it was determined that the appellant had been wrongly convicted.
This conclusion was reached due to the unsatisfactory evidence provided by one of the witnesses, who was reported to be his girlfriend.
"The upshot is that the appeal is accordingly allowed, the conviction quashed and the sentence set aside. The appellant is set at liberty forthwith unless otherwise lawfully held," read part of the ruling.
During the appeal, the accused put forth the argument that the lower court had treated him unjustly by solely relying on the evidence presented by a single witness. This witness had positively identified him as one of the suspects involved in the crime.
According to the court documents, the robbery incident occurred at night in November 2009 in Runda, Nairobi County.
According to the reports, the victim was driving home when he was unexpectedly ambushed by burglars as soon as he arrived at the gate of his residence. The court proceedings further revealed that prior to the incident, the victim had called one of his employees to open the gate, unaware of the impending attack by the burglars.
Upon sensing the danger, the victim sped off, injuring one of the suspect's legs in the process.
The thieves, armed with a pistol, targeted the victim with the intention of stealing his Honda CRV, valued at Ksh1 million.
Police were informed of the incident. The suspects were arrested and subsequently arraigned in court. Six witnesses were called in to give their accounts including the victim.
The said witness explained that she recognised the appellant since she had known him for eight months. The appellant did not deny their relationship adding she was his girlfriend.
"She stated that there were security lights at the gate allowing her to see the men clearly who were 10 metres away.
She testified that she was able to recognise the appellant who was in the blue tracksuit as he used to work for a neighbour," read part of the court documents.
The first discrepancy listed by the Court of Appeal was that if the witness recognised the appellant, she would have called out his name.
Another glaring discrepancy cited was that if she saw the appellant holding a gun, the first instinct would be to run for her life. She also did not state whether the appellant turned in her direction for her to positively identify him.
"If indeed she saw and recognised the appellant, whom she claimed to have been her acquaintance, she should have given this evidence when recording her evidence or to the police who went to the scene," read part of the ruling.
The three-judge bench argued that the prosecutors should have delved thoroughly into the relationship between the two.
"If they were acquaintances and there was a fallout, that could have been the impetus for her to settle scores by falsely testifying against the appellant. We are not therefore convinced that the identification and recognition of the appellant by her was free from the possibility of error," the judges ruled.
Conclusively, the Court of Appeal ruled that the appellant was unjustly convicted. (Source: Kenyans.co.ke, 08/07/2023)