David Musembi Mue vs Republic [2000] KECA 309 (KLR)

The complainant knew the appellant well, a fact the appellant did not dispute, and the attack occurred under bright moonlight. Adopting Anjononi, the court held that recognition depends on the personal knowledge of the assailant and is therefore more satisfactory, more assuring and more reliable than identification of a stranger. The complainant was confronted by the appellant and his companion, both armed, was shot with an arrow and robbed; the trial and first appellate courts concurrently found the recognition positive and free from error, and the Court of Appeal agreed there was no mistake as to identity.

The court restated the trite law that a fact may be proved by the testimony of a single witness, while insisting that such evidence be tested with the greatest care where conditions favouring a correct identification might be difficult. It noted that the trial magistrate expressly acknowledged the danger of relying too heavily on a single identifying witness, referred to R v Turnbull, and that the first appellate court evaluated the evidence afresh, as it was required to do, before concluding that the identification was positive and free from error.

Section 296(2) prescribes the death sentence where the offender is armed with a dangerous or offensive weapon or instrument, is in company with one or more other persons, or wounds, beats, strikes or uses personal violence at or immediately before or after the robbery. The appellant was armed with a bow and arrows, both dangerous and offensive weapons, which were put to use when he shot the complainant, and the complainant was robbed of Shs.750 and a wrist watch. The court held all essential ingredients established.

The appeal turned entirely on identification by a single witness. Both courts below had concurrently found that the appellant was properly identified and that the complainant was robbed as he described. The first appellate court had evaluated the evidence afresh, as it was required to do, and concluded that the identification was positive and free from error. The Court of Appeal upheld those concurrent findings, saw no mistake as to identity, and held the conviction safe.

Quoting Roria v R, the court acknowledged that a conviction resting entirely on identity invariably causes a degree of uneasiness, the danger being greater where the only evidence against an accused is identification by one witness. Although such a conviction may be upheld, the court must satisfy itself that in all circumstances it is safe to act on the identification. On the facts - prior acquaintance, bright moonlight and positive recognition - the court was so satisfied.