Court quashes robbery conviction over flawed evidence

A man sentenced to death for robbery with violence has had his conviction quashed by the Court of Appeal in Nyeri after judges found the evidence against him unreliable and the identification process flawed.

Anthony Kabuthu Ndwiga was serving time after being convicted in 2014 for violently robbing a petrol station attendant in Kiritiri Township, Embu County.

The incident, which took place on the night of June 7, 2013, left two employees injured and sparked a lengthy legal battle that has now ended in the accused's favour.

The attack occurred at around 2 am at a petrol station.

The complainant, Peter Njeru Nyaga, told the trial court that he and a colleague were attacked by two men, one wielding a metal bar and another a pistol.

They were robbed of the day’s sales, estimated between Sh35,776 and Sh38,000, as well as mobile phones and airtime cards.

According to Nyaga, the lights were on, and he was able to identify Ndwiga as one of the assailants.

However, a closer examination of the testimony revealed discrepancies.

The number of attackers varied between Nyaga’s statement and that of his co-worker, Anthony Namu.

While Nyaga insisted there were two robbers, Namu said there were three.

This inconsistency, among others, played a significant role in the Court of Appeal’s decision.

The three-judge bench comprising Justices Sankale ole Kantai, Jessie Lesiit, and Aggrey Mchelule, found the prosecution's case shaky and the identification process questionable.

“The circumstances for identification were difficult, seeing that the robbery took place in the middle of the night and involved an attack with a weapon,” the judges observed.

They also noted that although the complainant claimed to have known Ndwiga for about two years before the incident, no initial report or first statement naming him was presented as evidence.

The court further scrutinised the alleged recovery of the complainant’s mobile phone, which was said to have been traced electronically to Ndwiga.

However, the court found that no official documents, such as a printout or certificate under the Evidence Act, were produced in court.

“There was no document showing that a printout of the call log was made, nor a certificate under Section 106B of the Evidence Act to support the use of an electronic record,” the judges ruled.

Additionally, the phone presented in court did not match the serial number on the complainant’s purchase receipt.

This further weakened the prosecution's case, which had relied heavily on the recovery of the phone and the application of the doctrine of recent possession.

“Suspicion, however strong, cannot substitute for proof,” the judges stated.

They also pointed out the unfairness in the trial court’s finding that Ndwiga’s explanation about the phone, claiming it was given to him by his wife, was a “sham.”

Interestingly, the same court had acquitted the wife who allegedly handed him the phone.

In its final decision, the Court of Appeal ruled that the identification evidence was not free from the possibility of error and the recovery of the alleged stolen phone was not satisfactorily proven.

“There was no safe or satisfactory basis upon which the appellant’s conviction could stand,” the ruling concluded.

The judges allowed the appeal, quashed the conviction and set aside the death sentence.

“We think that had the High Court considered the issues we have identified and discussed in this judgment, it would have found that there was a reasonable doubt on whether the appellant (Ndiwga) had been properly convicted,” the judges ruled.

“We find that the conviction was not safe in those circumstances. The same is hereby quashed. We allow the appeal by quashing the conviction and setting aside the sentence. The appellant shall be set at liberty forthwith unless otherwise lawfully held.”