Limbambula v Republic (Criminal Appeal 140 of 2003) [2003] KECA 180 (KLR)

The appellant was before the Court of Appeal on a second appeal, his first appeal to the High Court having been dismissed. The court held that by dint of section 361 of the Criminal Procedure Code only matters of law could fall for its consideration. All three grounds raised - insufficiency of identification evidence, absence of a single-witness warning and failure to analyse the lighting evidence - were treated as questions of law going to the safety of the conviction rather than factual matters.

The court adopted the rule in Choge v Republic that voice identification is receivable and admissible and can, depending on circumstances, carry as much weight as visual identification, provided care is taken to ensure it was the accused's voice, the witness was familiar with and recognized it, and conditions precluded mistake. The appellant was the complainant's first cousin and they were very close, so the court held the voice recognition was free from any possibility of error. The appellant also spoke during the attack, demanding money and ordering that the complainant be finished.

The court accepted that the only source of light in the bedroom was torchlight of unknown intensity, as counsel had submitted. It nevertheless held that the observation of the appellant was not momentary and the attack lasted some time. As the complainant and the appellant wrestled and fell, the gang's torches were directed at the two; being very close to each other, there was every opportunity for the complainant to observe the appellant. The complainant also saw the appellant's face clearly when torches were shone on it.

It is trite that a court must warn itself of the dangers of acting on the evidence of a single identifying witness, particularly where conditions favouring correct identification are difficult, as at night. The court found that the two courts below were alive to the fact that they were dealing with the testimony of a single identifying witness, that the warning was given, and that the record was clear on the point. The trial magistrate had expressly treated the complainant's testimony as single-witness recognition evidence.

Relying on section 8 of the Evidence Act, the court held that motive is that which makes a man do a particular act in a particular way, exists for every voluntary act and is often proved by conduct. Motive becomes an important element in the chain of presumptive proof and where a case rests on purely circumstantial evidence, though proof of it is not essential to prove a crime. The appellant had threatened that the complainant would recognise who he was, and the robbery occurred the following day, so the courts below were entitled to infer motive.