Richard Gitau Njogu & another v Republic [2008] KECA 120 (KLR)

The only viable identification evidence was that of PW1, who identified the appellants at the scene and at parades. However, the parades were held some three months after the incident, an interval too long for the results to be relied upon. The trial magistrate failed to warn herself of the dangers of acting on a single identifying witness, and the superior court, while treating the parades as corroborative, never referred to the delay. The evidence therefore could not safely sustain a conviction.

PW2 never attended an identification parade and identified the appellants only at the dock. Both courts below found such identification to be of the weakest kind; the first appellate court expressly discounted it as worthless. The Court of Appeal agreed that evidence of this kind does not amount to much in law and could not bolster PW1's identification.

The superior court had held that the retracted statement of the third accused, who named the appellants, corroborated PW1's identification evidence. The Court of Appeal rejected this: a retracted statement is itself suspect and in need of corroboration, so it cannot simultaneously serve as corroboration for other evidence. This removed the remaining purported support for the conviction.

Relying on section 361(1)(a) of the Criminal Procedure Code and Okeno v Republic, the court reaffirmed that its jurisdiction on second appeal is confined to questions of law. It cannot revisit concurrent findings of fact unless they are so erroneous that no court of law properly exercising its mind could have made them, and sentence severity, being factual, is outside its purview. The flaws here went to legal standards of identification, justifying intervention.