Why man on death row was set free by High Court
Voi High Court Judge George Dullu overturned Kanjori's death sentence and released him after considering the evidence presented by the prosecution.
Failure to conduct an identification parade has led to the freedom of a convict sentenced to death for drugging, stabbing and robbing a businessman of his vehicle and valuables worth Sh7 million.
Not even photographs of Merrily Daniel Ole Kanjori circulated in the media for robbing, stabbing and drugging Mr Stephen Opiyo Sandia could convince the High Court of his involvement in the crime.
Voi High Court Judge George Dullu overturned Kanjori's death sentence and released him after considering the evidence presented by the prosecution.
Justice Dullu noted that there was no evidence on record that the victim had described Kanjori to anyone before his arrest.
"The reason Kanjori was arrested in Karen area of Nairobi was also not explained in the evidence on record to be connected with this offence," the judge said.
Justice Dullu further noted that the mere fact that Kanjori's photograph was circulated in the media by Taveta police, leading to his arrest, did not mean it was connected to the crime.
The court noted that the prosecution should have produced evidence to show that Kanjori was wanted specifically for the robbery of Mr Sandia, which it failed to do.
"Although the prosecution claimed that Kanjori was identified by the victim in an identification parade, the evidence on record is that the identification parade was to be conducted for Leo Wangina Gerald, who refused to participate in the parade and later absconded from the trial," the judge said.
Kanjori, Mr Wangina and another accomplice were charged in the Taveta Magistrate's Court in 2018 with armed robbery.
According to the charge sheet, on May 27, 2018, at Mata Trading Centre in Taveta, the suspects, together with others, robbed Mr Sandia of Sh4,500, a Toyota Land Cruiser, a driver's licence, an identity card, a mobile phone and various personal items of clothing, all valued at over Sh7 million.
The court heard that the suspects committed the offences while armed with knives and other weapons.
Mr Sandia was injured during the attack.
Kanjori and his two accomplices denied the charges at the Taveta court.
While Wangina absconded during the trial, the third suspect was acquitted after the trial.
Kanjori was found guilty and sentenced to death after the court considered the testimony of seven witnesses.
Dissatisfied with the conviction and sentence, Kanjori appealed to the High Court through Gicheha Kamau & Company Advocates, arguing that the lower court had convicted him on a flawed charge.
"The trial judge did not properly analyse the evidence on record and in his selective analysis failed to take the necessary balanced view, which prejudiced my case," he complained.
Kanjori also argued that the lower court was speculative in its analysis and findings and did not take into account all the facts, circumstances and material evidence relating to the case.
He also accused the court of failing to take into account the obvious discrepancies, contradictions and inconsistencies that he claimed were in the prosecution's case.
"The trial court erred in law and fact by relying on the hearsay and inadmissible evidence of an informer and a confession that was not properly taken," he argued.
In his view, the trial court relied on the evidence of a single witness to the identification without warning itself of the dangers of relying on such evidence.
Kanjori also argued that the trial court failed to appreciate that the case was poorly investigated and that key witnesses and evidence were unavailable.
"In all the circumstances of the case, the sentence was harsh and excessive and the court should take this into consideration," he submitted.
The DPP, however, urged the court to find that Kanjori had been properly convicted and uphold the sentence.
Justice Dullu reviewed the evidence and found that the prosecution had proved beyond reasonable doubt that Mr Sandia was robbed, stabbed and drugged in the incident that took place in broad daylight.
The judge found that the victim's and police evidence was clear and detailed as to the sequence of events, the date, time and place of the robbery and the items taken.
"Like the trial magistrate, I therefore conclude that a robbery with violence was committed against Sandia on the date stated and with the items described in the charge sheet, including the vehicle taken from him," the judge said.
However, Justice Dullu found that Kanjori's appeal succeeded on only two grounds, both relating to the identity of the perpetrator.
The court found that there was no evidence from the police that they had conducted an identification parade for Kanjori, so it could not be said that he had been positively identified as one of the robbers.
"The descriptions given in court by the victim of what the appellant was doing at the scene could as well be a recounting of events in the dock to support a preconceived narrative because there is no evidence on record that Sandia identified him and described to anyone what the appellant was doing prior to his appearance in court to sufficiently link the appellant to the offence," the judge said.
The court also noted that the appeal was successful because the prosecution did not challenge his account through cross-examination, leaving his sworn defence testimony unchallenged.
"It follows that the unchallenged sworn denial of the appellant swung the pendulum against the prosecution and the appellant is therefore entitled to its benefit and thus an acquittal," the judge said.
The judge concluded that the identification evidence established only a strong suspicion, not a positive identification of the appellant, and therefore Kanjori was not positively identified as the perpetrator.
