Identification Parades in Kenya , Kenyan Criminal Procedure

By Ms Lichuma
What are ID Parades?

· Blacks Law Dictionary defines ID parades as a police identification procedure in which a

· ID parades are held to enable eye witnesses to identify suspects whom they allegedly saw.
Failure to hold such parades weakens the evidential values and all that remains will be dock
identification which is weak.

Dock Identification v. Identification parades

· Dock identification involves a witnesses pointing out the accused standing at the dock, and
identifies him as the culprit who committed the crime.

· The courts generally avoid convictions based on dock identification because such evidence
without corroboration is of lesser value. This was enunciated in Gabriel Njoroge v. Republic
where the court held that the dock identification of a suspect is generally worthless unless other
evidence is adduces to corroborate it.

Conduct of ID Parades

Force Standing orders (chapter 46)

· This provides that, whenever necessary that a witness be asked to identify an

· This requirement was justified following R v. Mwango & Maina- Here an ID Parade was
conducted in hospital where the suspect was admitted and which the ID parade consisted of only
3 men. The complainant picked out the accused who was tried and convicted. The convication
was quashed as this flouted two major police force standing orders:

o The accused should have been placed among eight people of similar height, age and general
appearance; and

o The witness should have been asked to pick out the person he believes committed the offence.

Prior to ID parade
· Witness should provide a description of the accused before taking part in a parade. In
cases relying solely on the evidence of identification, it is imperative that the description of the
offender made by the victim during the first report to the police is recorded and latter produced in
evidence.

o Ntelejo Lokwam v. Republic- ID parade was held three years after the said robbery. Held that
in the absence of a description being given to the police when the first report was made after the
robbery had taken place, it would be impossible for an independent tribunal to arrive at a
determination that the complainants had in fact made a positive identification of the appellant in
an ID parade.

Procedures under the Force Standing Orders

The accused/ suspected person should always be informed of the reason for the parade and that
he may have a solicitor or friend present when the parade is being conducted.

· This requirement gives an accused a protective feeling. Though the parade helps to
identify a suspect, it offers the accused a certain level of security by its very nature and conduct.
· The presence of a lawyer or a friend in an identification parade helps to assure the accused
that his rights are well taken care of. In the case of David Mwita Wanja & 2 Others vs. Republic,
the first appellant contended that his rights were violated as he was not allowed to have a friend
present then. However, the court held that Mwita’s parade was conducted properly. It was an
omission on his part to provide an address of a friend he wished to call or a name that led him
not having a friend present.
The police officer in charge of the case, although he may be present, should not conduct the
parade.

· This underscores the need of fairness in the conduct of the parade. The presence of a
police officer in charge of the case would be prejudicial to the accused.

The witness or witnesses should not see the accused before the parade
· If witnesses are allowed to see the accused before the parade, it will be prejudicial to the
accused and would greatly undermine the evidential value of the parade. The police should take
steps to ensure that this does not happen.

· In the case of Livingstone Mwangi v Republic the court held that the identification parade
was not worthy of any evidential value since the identifying witness had already been shown the
suspect who was already arrested.
· In Omar v. Republic the court clearly upheld the rule that the witness or witnesses should
not see the accused before the parade. It stated as follows: ‘Though the parade had been properly
conducted, the appellants success in proving that he had been seen by the witness prior to the
parade meant that the parade was useless.’

The accused /suspected persons should be placed among at least eight persons, as far as possible
of similar age, height, general appearance and class of life as himself. Should the
accused/suspected person be suffering from disfigurement, steps should taken to ensure that it is
not especially apparent.

· In Njihia v. Republic the court held that the identification parade conducted in this case
was not proper because it was contrary to the ratio of one suspect to eight persons, which is
stipulated in the Police Force Standing Orders. In this case three suspects had been lined with
eleven others. The court observed that this was mathematically too low a ratio to exclude the
chance of random guesswork.
· In the case of David Mwita Wanja & 2 Others v. Republic-In this case two parades were
conducted. The eight persons who took part in the second parade however, were the same
persons were in the earlier parade except the positions they stood. It was submitted by the
counsel for the appellants that the evidential value of the identification parades were rendered
meaningless since the witness could readily tell by elimination that the two appellant were the
only new faces in the parade. It was held by the court that this was extremely prejudicial to the
appellant

The accused/ suspected person will be allowed to take any position he choses and will be
allowed to change his position after each identifying witness has left.
· This ensures that the suspect does not feel noticeable and that his protection is guaranteed.
The intention of such movement is in no way intended to confuse the witness but to help achieve
a positive identification of the culprit.

Care must be exercised to ensure that the witnesses do not communicate with each other

· This provision ensures that the suspect is protected from bias in that he/she is not
identified on the basis of information received from another witness which in most cases might
be so subjective

Every unauthorized person must be excluded

If the witness desires to see the accused/suspected person to walk, hear him speak, or for
example see him with his hat on or off, this should be done, but in this event the whole parade
should be asked to do likewise.

· The requirement that this should apply to the whole parade ensures that suspect does not
have undue advantage over the others. In the South African case of ‘Two hats Parade’ the
accused was the only one in the parade who had worn a scarf. The woman identifying him asked
the police officer conducting the parade to move and turn sideways and even asked him to
produce a noise. It was held that this was not proper as the others were not asked to do the same.

Police should ensure that the witness actually touches the person he identifies
· This is meant to ensure that the identifying witness is certain of the person identified. It is
also meant to avoid any form of confusion that might arise between the persons conducting the
parade and the identifying witness. For instance, a witness might identify a suspect but the police
might understand or record it differently. But when a witness touches the suspect, he/she leaves
no doubt as to whom exactly he/she identified.

At the termination of the parade, or during the parade, the officer conducting it should ask the
accused/ suspected person if he is satisfied that the parade is being/has been conducted in a fair
manner and notes his reply.

· The accused/suspected person in this case is given a chance to comment on the fairness of
the identification parade. This rule has the effect of making the accused/suspect part of the
process with the ultimate goal of conducting the parade fairly. He may at this point raise any
objection on how the parade is being conducted. If he does raise an objection, the court will
exercise its discretion in determining the validity of such objection.

When explaining the procedure to a witness the officer conducting the parade will tell him that
he will see a group of people which may or may not contain the person responsible. The witness
should not be told ‘to pick out’ somebody or be influenced in any way whatsoever.

· The case of Oluoch v Republic illustrates this point. In this case, one of the identifying
witnesses was, according to his evidence, told ‘to identify the people who robed me on August
10th 1982.’ It was held that the witness could reasonably take that to mean that persons who
robbed him were at the parade. Consequently, the evidence was considerably of lesser value

A careful note must be made after each witness leaves the parade, to record whether he identified
the accused/suspected person and in what circumstances.

· This is done for the purpose of keeping proper records and it will also help to determine
whether the witness identified the accused positively or not. The circumstances under which the
accused was identified will help in comparing the description of the accused by the witness and
the identified person in the parade. This record will also go a long way in assisting the court to
exercise its discretion with regard to the circumstances surrounding the identification parade.
A record should be made by the officer conducting the parade of any comment made by the
accused/ suspected person during the parade, particularly comments when the accused/ suspected
person is identified.

· This is also meant to assist the court in exercising its discretion in determining whether or
not to admit the evidence. It is not easy to imagine statements that might suggest that the accused
is guilty. This is therefore factual and each statement should be analysed on its own merits.

The parade must be conducted with scrupulous fairness, otherwise the value of the identification
as evidence will be lessened or nullified

· This point is well captured in the case of R v. Mwango

Note that parades should be conducted with as much privacy as possible. They should not, unless
unavoidable, be held in view of the public but in a closed compound or yard from which
spectators and unauthorized persons have been excluded

Anonymity of witnesses

The Force Standing Orders also provide that if a witness desires to keep his identity secret, and
the circumstances are such that the officer in charge of the case deems such a course advisable
for reasons of security, victimization, etc, arrangements will be made for the witness to view the
parade from a concealed vantage point (e.g through a window, from behind a screen). If the
witness identifies one or more of the persons on the parade, the persons so identified will be
removed from the parade and brought before and confronted with the witness, who will be asked
to confirm the identification in the normal way, i.e by touching the person

Whenever the prosecution is to adduce evidence based on the conduct of an identification