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Bernard Gathiaka Mbugua, John Mzee Mtuu, David Kinyagia Mary, Erick Kipkurui Kipkemoi & John Karanja Njuguna v. Republic

(2016) JELR 105718 (CA)

Court of Appeal  •  Criminal Appeal (Application) 113 of 2014  •  2 Aug 2016  •  Kenya

Coram
Philip Nyamu Waki, Roselyn Naliaka Nambuye, Patrick Omwenga Kiage

Judgement

RULING OF THE COURT

1. There seems to be a growing belief by appellants and learned counsel alike, that in criminal appeals that rest on identification, an appellant is entitled to an acquittal unless an identifying witness mentions the name or description of the perpetrator of the crime and that report is recorded in the police Occurrence Book (OB). It would not matter that the witness mentioned the name or gave the description to the first person or people to arrive at the scene of the crime, whether they were people in authority or not, and it would not matter whether the witness subsequently made the description in the full statement made to the police at the first opportunity. Unless the report was in the OB, it was of little or no probative value, so seems to be the belief. We say this because we have seen an upsurge of applications filed for introduction of further evidence in first and second appeals, and almost invariably they all seek the production of OBs.

2. Perhaps the beliā€¦

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