1. Joel Saiyanga Ole Mwaniki 2. Joseph Otieno Ogutu v Republic

The witness was robbed at night by several people he did not know. Professional practice required the police to organise a fair identification parade once a suspect was arrested, so the witness could pick out his attacker. Instead they showed him the arrested man, which was prejudicial and left only dock identification, worthless under Gabriel Kamau Njoroge. The witness had also been contradicted by Lemeso on a visual identification of the same appellant, the very contradiction that produced the acquittal on count 5. The appellants were therefore entitled to the benefit of doubt.

Kagiri testified that he attended an identification parade of six, not the required eight, members, but the prosecutor applied for an adjournment because the parade officer was not bonded and never tendered parade evidence. Following Bukenya, the court inferred the withheld evidence would have been adverse to the prosecution, leaving only worthless dock identification; Kagiri could also hardly have identified attackers flashing torches in his eyes. On the shoes, the witnesses said the robbers dropped them while fleeing; the magistrate's finding that they were recovered from the appellant was founded on wrong facts.

A first appellate court cannot excuse itself from weighing conflicting evidence and drawing its own inferences while making allowance for not having seen or heard the witnesses. The superior court merely recorded satisfaction with the magistrate's conclusions without analysing the single-witness identification, the absence of parade evidence or the shoes issue. Had those matters been considered, the court might have reached a different conclusion; the failure amounted to a misdirection on material points reviewable on this second appeal.

Drawing on Abdalla Bin Wendo, Roria, Kamau and Wamunga (which adopts Turnbull), the court restated that a conviction resting entirely on identity causes uneasiness, that the most honest witness can be mistaken, and that miscarriages of justice from visual identification must be minimised by careful examination of the conditions of identification, including lighting, opportunity to observe, prior acquaintance, the witness's first description to the police and any identification parade.

Lemeso spoke of four thugs, two of whom escaped entirely and one unaccounted for, while other witnesses spoke of two people. Without knowing who dropped the shoes found on the way, the magistrate erred in finding they were recovered from the first appellant and in asserting he was seen dropping them. Basing the decision on those wrong facts, she inevitably came to a wrong conclusion, and the convictions built on that premise could not stand.