Cypriano Murori v Republic

The court weighed the size of the single room, the close proximity between complainant and appellant during the struggle, the torch light flashed on the appellant's face by both the complainant and his wife, the parties' acquaintance of over three years, and recognition by voice. It concluded these objective factors left no doubt of positive recognition, reinforced by the immediate naming of the appellant to neighbours and to the Assistant Chief. The concurrent findings of the two courts below on truthfulness and favourable identification circumstances were therefore unassailable on second appeal.

Counsel urged that the conflicting dates on the P3 form and in the clinical officer's testimony rendered the medical evidence worthless, leaving no case of attempted robbery with violence. The court acknowledged the conflict but held the aggravated aspect did not rest on medical evidence alone: the charge particulars alleged the appellant was in company of others not before the court, an ingredient of section 297(2), and the complainant's evidence, if accepted, showed he was both accompanied and armed with a panga, a dangerous weapon.

As a second appeal, the matter turned on points of law, yet the court emphasised that the trial magistrate and the first appellate court had made concurrent findings that the complainant and his wife were witnesses of truth and that the circumstances of identification favoured a correct identification. The court held the two courts were entitled to reach that conclusion and that the evidence on record justified it, so the Court of Appeal would not disturb those findings.

The superior court's judgment proceeded as though the charge was robbery with violence under section 296(2) rather than attempted robbery with violence under section 297(2). The court acknowledged the error but held it immaterial because the first appellate court's conclusion was a dismissal of the appeal against conviction and sentence for the offence actually charged. The mischaracterisation in the body of the judgment therefore did not vitiate the result.

Counsel for the appellant contended that without evidence of the language in which the appellant demanded the property, correct voice identification was impossible, since a person's voice changes depending on the language used. The court rejected the submission, observing there was no scientific or other proof supporting the proposition, and treated the admitted familiarity of the complainant and his wife with the appellant's voice, built over three years, as sufficient foundation for recognition.

Counsel argued that the appellant's death threats against the Assistant Chief, made after the latter reported the matter to the police, were consistent with the conduct of a person falsely accused of a criminal offence. The court disagreed, holding the conduct was equally capable of the inference that the appellant was a bitter man on realising he had been found out. The point furnished circumstantial support for the reliability of the identification evidence.