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Court of AppealDismissedCriminal Appeal 252 of 2005

Francis Makokha Masindano v Republic [2007] KECA 225 (KLR)

Court of Appeal of Kenya
21 September 2007
SBS. E. O. BosireEGE. M. GithinjiJOJ. W. Onyango Otieno
1,794 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that one credible witness who got a good look at an attacker can be enough to convict — and the appeal failed.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Bosire, Githinji and Onyango Otieno, JJA) dismissed the appellant's second appeal against conviction for attempt to procure abortion contrary to section 158 of the Penal Code and against a sentence of 4½ years imprisonment as reduced by the High Court on first appeal. The appellant had been convicted on the sole identifying testimony of PW2, a schoolgirl who said he inserted a wire into her vagina at a lodge to terminate her pregnancy. The court held that section 143 of the Evidence Act permits proof of a fact by a single witness, and that identification was safe because PW2 met the appellant in broad daylight, spoke to him face to face and had a prolonged opportunity to observe him, making an identification parade unnecessary. The appellant's complaint that the lodge worker who pointed him out for arrest was not called as a witness failed: on the authority of Bukenya v Uganda, an adverse inference may only be drawn where the prosecution's evidence is barely sufficient, which was not the case here. The court reiterated that a second appellate court may interfere with credibility findings only in clear cases where there was no proper basis for believing a witness, and deferred to the concurrent findings of the trial magistrate and the first appellate judge. The judgment is authority for appellate deference to concurrent factual findings and for the limited circumstances in which failure to call a witness attracts an adverse inference. The decision binds subordinate courts on these principles.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether PW2's identification of the appellant by a single identifying witness was free from error and sufficient to sustain the conviction
  2. 2.Whether an adverse inference should be drawn against the prosecution for failing to call the Blue Lodge worker who pointed out the appellant
  3. 3.Whether the Court of Appeal could interfere with the concurrent findings of fact and credibility of the trial court and first appellate court
  4. 4.Whether the reduced sentence of 4½ years imposed on first appeal should be disturbed

Key legal issues

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01

Sufficiency of identification by a single witness

Holding

The conviction resting wholly on PW2's identification was safe: the encounter occurred in broad daylight, the appellant talked to her face to face, remained with her for long, and she had ample opportunity to observe him.

Reasoning

The court applied section 143 of the Evidence Act, which abolishes any rule of numbers, and the principles in Abdalla bin Wendo on proof by a single witness. It found the conditions for correct identification favourable, making an identification parade unnecessary. Concurrent findings of credibility by the trial court and first appellate court, which saw and heard the witnesses, could not be disturbed absent a demonstrable absence of basis for belief.

p. 3
02

Adverse inference from failure to call a witness

Holding

The prosecution's failure to call the Blue Lodge worker who pointed out the appellant did not justify drawing an adverse inference against the prosecution case.

Reasoning

While acknowledging it would have been more prudent to call the worker to complete the chain of events, the court held, on the authority of Bukenya v Uganda, that such an inference may only be drawn where the evidence adduced is barely sufficient. Here PW2's positive identification and the other evidence rendered the prosecution case more than barely sufficient, so the omission was not fatal.

p. 3
03

Appellate deference to concurrent factual and credibility findings

Holding

A second appellate court will not disturb concurrent findings of fact and credibility of the two courts below absent clear demonstration that there was no proper basis for those findings.

Reasoning

The Court of Appeal emphasized that the trial court, having seen and heard the witnesses, was best placed to rule on credibility, an advantage the appellate courts lacked. Interference is reserved for clear cases. Finding no such basis here, the court declined to upset the concurrent convictions, and likewise found no legal basis to interfere with the sentence as reduced on first appeal.

p. 3

Legal principles established

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  • An appellate court may only interfere with a trial court's finding on the credibility of a witness where there was no proper basis on the evidence for believing that witness
  • Failure by the prosecution to call a witness does not by itself permit an adverse inference; the Bukenya inference applies only where the prosecution evidence is barely sufficient
  • An identification parade is not essential where conditions favouring a correct identification exist
  • A fact may be proved by the testimony of a single witness; no particular number of witnesses is required unless the law so specifies

Court orders

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  1. 1.The appellant's appeal is dismissed
  2. 2.The conviction by the trial court and the sentence of 4½ years imprisonment as reduced by the High Court on first appeal are affirmed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority
EG
majority
JO
majority
On appeal from
High Court of Kenya at Kitale
H.C. Cr.A. No. 61 of 2004
Jurisdiction invoked
Second appellate jurisdiction under the Criminal Procedure Code over an appeal from the High Court exercising first appellate jurisdiction

Relief refused

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Quashing of conviction based on the sole identifying testimony of PW2

Conditions favoured a correct identification; PW2 had ample opportunity to observe the appellant in daylight and over an extended period

p. 3

Drawing of an adverse inference from the prosecution's failure to call the lodge worker who pointed out the appellant

Such inference may only be drawn where the prosecution evidence is barely insufficient, which was not the case here

p. 3

Interference with the reduced sentence of 4½ years

The first appellate court had jurisdiction to reduce the sentence and no proper basis in law for interference was shown

p. 3

Costs

No costs order was made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result, the appellant's appeal fails and it is accordingly dismissed.
p. 3Disposition - dismissal of appeal
That court had the jurisdiction to do so, and we find no proper basis in law for interfering. We accordingly affirm it as well.
p. 3Affirmation of reduced sentence on final orders
We can only interfere on such finding in clear cases where on the basis of the evidence on record, we come to the conclusion that there was no proper basis for believing a particular witness, which is lacking in this case.
p. 3Standard for interfering with credibility findings
section 143 of the Evidence Act, is quite clear that there is no particular number of witnesses required to prove a fact unless a particular provision of the law so specifies.
p. 3Proof by a single witness
This is not the kind of case in which an identification parade was essential as conditions favouring a correct identification were not difficult.
p. 3Identification parade not essential where conditions favour identification

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis Makokha Masindano v Republic [2007] KECA 225 (KLR)", Case Analysis (2007). Criminal Appeal 252 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/225/eng@2007-09-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.