Facts
The appellants were each convicted on five counts of robbery with violence committed in quick succession at five petrol stations in and around Nairobi. A stolen Ford car was used on each occasion. Their identities were established at identification parades by witnesses who also misidentified innocent men. It was argued for the appellants that these discrepancies made all the identifications unreliable. It was also submitted on the basis of s. 57(1)(a) of the Evidence Act, 1963, that the lower court should have directed itself that any evidence which showed that an accused was guilty of an offence on any of the other counts was inadmissible and could not be taken into account when considering the count in question. The prosecution asked for the sentences to be enhanced.
Held –
(i) the identifying witnesses could be relied on only in so far as they identified a particular appellant with a particular count.
(ii) s. 57(1)(a) of the Evidence Act, 1963, properly construed in conjunction with the marginal note, was intended to prevent evidence of previous offences or charges, the accused’s character not being in issue, where the only effect would be to demonstrate a tendency or propensity to commit the offence in question; consequently the section could not be used to exclude evidence of the commission of another offence when such evidence was admissible as evidence of a fact in issue.
Appeals allowed in part, convictions upheld on certain counts on which sentences enhanced.
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