Benson Njehia Wanjiru & 1 other v Republic

Counsel for the appellants argued non-compliance with section 200(3), which obliges a succeeding magistrate to inform an accused of the right to demand that any witness be re-summoned and reheard. The Court called for the trial magistrate's original file because the typed proceedings omitted the mention of 22nd July 2004. The original record showed the succeeding magistrate had recorded that the trial would proceed under section 200. Confronted with this, counsel conceded that section 200(3) had been complied with, and the ground collapsed as an artefact of typing rather than of the trial.

The Court accepted that the evidence of a single identifying witness must be treated with the greatest care, in line with Abdalla bin Wendo, Roria, Kamau and King'ori. Both courts below were alive to that danger. The crucial evidence was that of the complainant, Kariuki, who was with the appellants during the robbery. The incident took place in broad daylight at about 11.45 a.m., and the witness was with the appellants for a sufficiently long time to remove any possibility of error. Counsel's suggestion that the witness must have been in a state of fear did not displace the concurrent findings.

Mr. Oguk submitted that PW 9 was not competent to conduct the identification parade since he had taken part in the investigation of the case. The judgment does not resolve that objection as a discrete point; it frames identification as the only substantial issue, considers the complainant's evidence and the parade identification of the 2nd appellant, and concludes that there was no mistake as to identity. The conviction of the 2nd appellant was therefore upheld and his appeal dismissed.

The Court reiterated, citing Karingo v. Republic, that a second appeal must be confined to points of law and that it would not interfere with concurrent findings of fact of the two lower courts unless shown not to have been based on evidence. It had carefully considered the evidence recorded by the trial court, the findings made on it and the observations of the first appellate court, and was satisfied there was no mistake as to identity. The concurrent findings therefore stood and the convictions were upheld.

The issue of the 1st appellant's age was raised by Mr. Oguk. The Assistant Deputy Public Prosecutor pointed out that it had never been raised in the two courts below but left the issue to the Court to deal with as it thought fit. The Court, having upheld the conviction on the second count, directed a medical determination of the 1st appellant's age and adjourned the question of sentence to 13th October 2006 in Nairobi, so that sentence would be dealt with once his age was known.