Police errors hand death row inmate freedom

A death row inmate walked scot-free after the Court of Appeal sitting in Nakuru established that police failed to conduct an identification parade. 

Kennedy Kemboi was convicted and sentenced to suffer death for violent robbery and attempted rape, an offence he committed on June 5, 2010.

The lower court established that Kemboi stole one sack of green vegetables valued at Sh400, cash Sh100, and threatened to use force against a lady whose identity we could not reveal to protect her privacy.

Two previous attempts to have the conviction and sentence dismissed failed, but Kemboi was third time lucky when justices Fred Ochieng, Weldon Korir, and Grace Macharia allowed his appeal.

The Judges noted the complainant's testimony that she was waiting for a vehicle at Mangu after buying groceries.

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“It was 6 pm. I was waiting to board a vehicle back to Mogotio in vain. I noticed a man following me. He greeted me, and we talked,” she alleged.

Ironically, she said, the appellant was also heading to Mogotio.

She claimed that Kemboi assisted her to carry the luggage as it was getting became dark before he suddenly held her neck, and strangled her, demanding money.

She alleged that the man ripped off her clothes and attempted to rape her but luckily, there was no erection and he slapped her demanding that she caresses him.

The woman said she managed to flee from her attacker and hid in a wheat farm, and at around 10 pm, a motorcycle rider spotted her and took her to his home.

“The next day, I reported the incident at Menengai Police Station, describing the assailant as tall and a little bit dark, with long hair. He was wearing light blue jeans trousers and a cream jacket whose shoulders were dirty,” alleged the complainant.

Following the description, an officer attached to the station allegedly indicated that he knew the perpetrator, leading to Kemboi's arrest.

Kemboi gave sworn testimony, denied the charges, and told the court that he didn’t know why he was arrested and charged.

During the hearing, he allegedly claimed to be sick, but the magistrate proceeded with the case, indicating that it was a trick used by the appellant.

Kemboi appealed against his conviction, stating that police failed to conduct an identification parade and he was not allowed to have an advocate. 

The judges observed that the complainant's testimony had no probative value, making it difficult to know if the identification was genuine.

“Our justice system is committed to ensuring innocent individuals are not wrongfully convicted. The courts must carefully assess identification testimony, especially when the only evidence against the accused comes from a single witness,” Judges observed.

The three Judges found that Kemboi was not properly identified as his arrest was based on suspicions as no identification parade was conducted, which was necessary.

“We find the appeal herein to be meritorious, we accordingly allow the same, the conviction is quashed and the sentence set aside, we order the appellant to be set at liberty forthwith unless he is otherwise lawfully held,” ruled the court.