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Shida Kenga Mitsanze v. Republic

(2016) JELR 93985 (CA)

Court of Appeal  •  Criminal Appeal 2 of 2015  •  27 May 2016  •  Kenya

Milton Stephen Asike Makhandia, William Ouko, Kathurima M'inoti



The central question in this appeal and indeed the only question before the two courts below, was whether the appellant was part of the gang of three men that robbed the complainant on the night of 5th December 2009. It was the only issue because the offence was committed at about 8.00 p.m. and there was conflicting evidence as to whether the complainant and the only other witness, PW2 were able to properly see and accurately identify their attackers. While the prosecution relied on both direct and circumstantial evidence and insisted that in totality the evidence pointed directly at the appellant, the appellant on the other hand denied participating in the robbery.

By section 361 of the Criminal Procedure Code we shall only inquire into issues of law raised in this appeal and identification of a suspect in a criminal trial, as was stated in Patrick Osiemo and others v. R, Criminal Appeal No. 30 of 2009 is question of law, as is the application of the doctrine of r…

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