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Nairobi High Court sets free two death row convicts

Two death row inmates have been handed a fresh lease of life after a court upheld their appeal and quashed the sentences they were handed over five years ago for violent robbery.

Judges Luka Kimaru and Ngenye Mcharia of the Milimani law courts said Mr John Chege Muthoni and Mr Kelvin Onchuru Seremani who were convicted in 2009 may as well have been victims of “mistaken identity.”

The appellant’s lawyer, Mr John Swaka, had told the court that the evidence of identification that the prosecution relied on serve to “raise further doubt” if indeed they were the assailants who accosted bar patrons on the night of December 2008 in Riruta while armed with a pistol, robbing them of cash, mobile phones and threatening to use actual violence in the process.

“There are too many gaps in the evidence of identification that raises reasonable doubt that the appellants were identified as members of the gang that robbed the complainants, there was no other evidence that was adduced by the prosecution to corroborate the evidence of identification,” the lawyer submitted.


He said that none of the items robbed off the complainants were recovered from his clients and that the possibility that the complaints were mistaken in their identification of the appellants “may well be the correct position as relate to the events of material night.”

Justice Luka KImaru and Ngeye Macharia upheld the lawyer’s argument,  arguing that the prosecution had failed to build a watertight case against the two.

“Witnesses claimed that they identified the appellants in the course of the robbery. They did not however give the physical description of their assailants in the first report made to the police, they did not even give description of the clothes that the assailants wore on the night of the robbery to enable them to be positive that it was the appellants who had robbed them,” the judges stated.

The Judges said they were not convinced that the evidence of identification by the prosecution was “watertight.”

“It is possible that the appellants were victims of mistaken identity,” the judges said, adding that evidence of visual identification in criminal cases can bring about miscarriage of justice and ought to be examined carefully.


They said the submissions made by Mr Swaka included alibi evidence supporting the appellants that they were elsewhere at the time the robbery took place.

“Counsel called evidence from their relatives to confirm that indeed they were at their respective homes at the time the robbery is said to have taken place,’ the judges said.

Two witnesses had however testified that they were “positive” Mr Muthoni and Mr Ochuru were among the gang that attacked revelers at Hi-Tech wines and Spirits bar in Riruta, Nairobi.

They had been handed the death penalty by the then Nairobi chief magistrate Uniter Kidullah.