1. Daniel Waweru Muraa, the appellant herein, was convicted of robbery with violence contrary to section 296 (1) as read with section 296(2) of the Penal Code.
2. The particulars were that on the 7th day of May 2022, at Mukungi within Kinangop in Nyandarua County, jointly with others not before the court, robbed Paul Gititu of an assortment of beers and spirits worth Kshs. 27,4800.00, and immediately before the time of the said robbery, wounded the said Paul Gititu.
3. The appellant was sentenced to death. He was aggrieved and filed this appeal in person. He raised the following grounds of appeal:
a) The learned trial magistrate erred in law and fact by convicting the appellant, but failed to note that the ingredients of the offence were not conclusively proved.
b) The learned trial magistrate erred in law and fact, and convicted the appellant, yet failed to find his defence cogent and believable.
c) The learned trial magistrate erred in law and fact when he convicted the appellant, yet failed to find that the prosecution did not discharge the burden of proof.
d) The learned trial magistrate erred in law and fact by convicting the appellant, but failed to note that the identification evidence by recognising the appellant was not positively proved.
4. The state did not submit grounds of opposition to the appeal or submissions.
5. As a first appellate court, I have thoroughly analyzed and evaluated all the evidence presented in the lower court. It is important to note that I did not see or hear any witnesses. In my evaluation, I will be guided by the influential case of Okeno vs Republic [1972] EA 32. The incident that gave rise to this case occurred at around 11 p.m. The complainant went out to answer a call of nature and was accosted by three individuals whom he recognized as Waweru, Chukumu, and Mburu. The only source of light was the torch he carried. He is the only witness who said he identified the appellant. It is trite law that a conviction can be based on the evidence of a single witness. However, great care must be taken before such a conviction is made. In the case of Abdullah Bin Wendo vs. Rex 20 EACA 166, the Court of Appeal emphasized the need for such care in the following words:
Subject to certain well-known exceptions it is trite law that a fact may be proved by a testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt from which a Judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness can safely be accepted as free from the possibility of error.
6. In the instant case, the complainant did not testify regarding what made him recognise the three people he claimed to have recognized, yet from his narration, one gets the impression that the attack was sudden. This is what he testified to:
When I went to urinate and while using my torch, I felt myself being assaulted and returned to the club. I felt myself being cut on the head. It is now healed (shows scars). I was hit with the panga by Waweru. He was with two other people, Chukumu and Mburu. I saw them through the torchlight. I recognized them when I was going to urinate. I was assisted with the torchlight.
7. Secondly, the prosecution did not elicit from him the intensity of his torch’s light that enabled him to see and recognize the trio who were merely a step away from him. In my view, there is no possibility of seeing the faces of three people with the aid of a torch’s light if they are only a step away. He did not testify to having flashed the light at their faces. This is incredible.
8. When the circumstances under which a purported recognition is made are not favourable, care must be taken to ensure no mistake is made in identification. The learned magistrate ought to have heeded the directions of Lord Widgery C.J. in the case of R. vs Turnbull and Others [1976] 3 All ER 549, where he stated as follows:
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be make. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger: but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relative and friends are sometimes made.
9. The complainant did not leave the court with the impression of being truthful. He testified that he saw the three individuals for the first time that night, yet explained how he knew the appellant before that occasion. He further contradicted himself by stating that there was electricity in the bar and that one of the attackers hit the bulb. Earlier, he had told the court that his torch was the only light aiding him. The Court of Appeal in the case of Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held:
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, raise suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.
10. The evidence of the complainant, therefore, required corroboration. PC Erick Wahome (PW3) testified that the appellant was arrested with two bottles of spirit and a bottle of beer in a sack. There were allegations that he had sold others. This amounted to suspicion, for there was nothing to connect the liquor to the one stolen from the complainant. The Court of Appeal in the case of Sawe vs Republic [2003] KLR 354 held as follows:
Suspicion, however strong, cannot provide the basis for inferring guilt, which must be proved by evidence beyond reasonable doubt.
11. A very material prosecution witness was not called. Charles Kamau Kamune (PW2) gave his name as John. He informed him that the appellant was selling liquor to him. The Court of Appeal in the case of Bukenya vs Uganda [1972] EA 549 (Lutta Ag. Vice President) held:
The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.
12. In the instant case, I am persuaded to infer that had they called John, his evidence would have been unfavourable to the prosecution's case.
13. Given the complainant's many contradictions and the loopholes I have pointed out in the prosecution’s case, the appellant's conviction was unsafe. The conviction is quashed, and the sentence is set aside. The appellant is set at liberty unless otherwise lawfully held.
Delivered and signed at Nyandarua this 23rd day of June 2025
2. The particulars were that on the 7th day of May 2022, at Mukungi within Kinangop in Nyandarua County, jointly with others not before the court, robbed Paul Gititu of an assortment of beers and spirits worth Kshs. 27,4800.00, and immediately before the time of the said robbery, wounded the said Paul Gititu.
3. The appellant was sentenced to death. He was aggrieved and filed this appeal in person. He raised the following grounds of appeal:
a) The learned trial magistrate erred in law and fact by convicting the appellant, but failed to note that the ingredients of the offence were not conclusively proved.
b) The learned trial magistrate erred in law and fact, and convicted the appellant, yet failed to find his defence cogent and believable.
c) The learned trial magistrate erred in law and fact when he convicted the appellant, yet failed to find that the prosecution did not discharge the burden of proof.
d) The learned trial magistrate erred in law and fact by convicting the appellant, but failed to note that the identification evidence by recognising the appellant was not positively proved.
4. The state did not submit grounds of opposition to the appeal or submissions.
5. As a first appellate court, I have thoroughly analyzed and evaluated all the evidence presented in the lower court. It is important to note that I did not see or hear any witnesses. In my evaluation, I will be guided by the influential case of Okeno vs Republic [1972] EA 32. The incident that gave rise to this case occurred at around 11 p.m. The complainant went out to answer a call of nature and was accosted by three individuals whom he recognized as Waweru, Chukumu, and Mburu. The only source of light was the torch he carried. He is the only witness who said he identified the appellant. It is trite law that a conviction can be based on the evidence of a single witness. However, great care must be taken before such a conviction is made. In the case of Abdullah Bin Wendo vs. Rex 20 EACA 166, the Court of Appeal emphasized the need for such care in the following words:
Subject to certain well-known exceptions it is trite law that a fact may be proved by a testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt from which a Judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness can safely be accepted as free from the possibility of error.
6. In the instant case, the complainant did not testify regarding what made him recognise the three people he claimed to have recognized, yet from his narration, one gets the impression that the attack was sudden. This is what he testified to:
When I went to urinate and while using my torch, I felt myself being assaulted and returned to the club. I felt myself being cut on the head. It is now healed (shows scars). I was hit with the panga by Waweru. He was with two other people, Chukumu and Mburu. I saw them through the torchlight. I recognized them when I was going to urinate. I was assisted with the torchlight.
7. Secondly, the prosecution did not elicit from him the intensity of his torch’s light that enabled him to see and recognize the trio who were merely a step away from him. In my view, there is no possibility of seeing the faces of three people with the aid of a torch’s light if they are only a step away. He did not testify to having flashed the light at their faces. This is incredible.
8. When the circumstances under which a purported recognition is made are not favourable, care must be taken to ensure no mistake is made in identification. The learned magistrate ought to have heeded the directions of Lord Widgery C.J. in the case of R. vs Turnbull and Others [1976] 3 All ER 549, where he stated as follows:
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be make. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger: but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relative and friends are sometimes made.
9. The complainant did not leave the court with the impression of being truthful. He testified that he saw the three individuals for the first time that night, yet explained how he knew the appellant before that occasion. He further contradicted himself by stating that there was electricity in the bar and that one of the attackers hit the bulb. Earlier, he had told the court that his torch was the only light aiding him. The Court of Appeal in the case of Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held:
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, raise suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.
10. The evidence of the complainant, therefore, required corroboration. PC Erick Wahome (PW3) testified that the appellant was arrested with two bottles of spirit and a bottle of beer in a sack. There were allegations that he had sold others. This amounted to suspicion, for there was nothing to connect the liquor to the one stolen from the complainant. The Court of Appeal in the case of Sawe vs Republic [2003] KLR 354 held as follows:
Suspicion, however strong, cannot provide the basis for inferring guilt, which must be proved by evidence beyond reasonable doubt.
11. A very material prosecution witness was not called. Charles Kamau Kamune (PW2) gave his name as John. He informed him that the appellant was selling liquor to him. The Court of Appeal in the case of Bukenya vs Uganda [1972] EA 549 (Lutta Ag. Vice President) held:
The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.
12. In the instant case, I am persuaded to infer that had they called John, his evidence would have been unfavourable to the prosecution's case.
13. Given the complainant's many contradictions and the loopholes I have pointed out in the prosecution’s case, the appellant's conviction was unsafe. The conviction is quashed, and the sentence is set aside. The appellant is set at liberty unless otherwise lawfully held.
Delivered and signed at Nyandarua this 23rd day of June 2025