Rekemo v Republic [2005] KECA 253 (KLR)

The court restated the settled rule in Roria and Maitanyi that a conviction resting on the sole evidence of a single identifying witness requires an express warning of the dangers of such evidence, especially where conditions favouring identification are absent. Having given itself the warning, the court assessed the quality of PW 2's recognition: prior acquaintance as a Molo resident, ample light, sobriety (he drank only a soda), a disabled patron left seated and unhurried while others lay down, consistency across three testimonies and a prompt report to police. Recognition, though stronger than stranger identification, was held capable of mistake, but no possibility of mistake was found here.

Framing the issue as whether the evidence proved beyond reasonable doubt that the appellant was among the robbers, the court weighed facts it found undisputed: PW 4 identified nobody, but PW 2 remained seated and unhurried, knew the appellant beforehand, had ample light, and was emphatic and unwavering in three appearances. The trial magistrate's view that the appellant's flight from arresting police corroborated PW 2 was endorsed. Although no stolen item was recovered from the appellant, the court held that acting in company, while armed with an offensive weapon, and threatening physical violence satisfied every ingredient of section 296(2) of the Penal Code.

Invoking Njoroge v Republic, the court described the first appellate mandate: to subject the trial evidence to a fresh, independent re-evaluation, to bear in mind that demeanour findings are unavailable to an appellate court that did not see or hear the witnesses, and to consider the grounds of appeal advanced. The court performed that exercise, independently assessing the identifying witness's opportunity, lighting, sobriety and consistency rather than deferring to the trial magistrate, whose assessment it nonetheless found consistent with the record and adopted.