Mugami Mungathi v Republic

Section 361 confines second appeals to matters of law. The Court restated Njoroge v Republic and held that while an appellant may argue that concurrent findings lack evidential foundation - which is a question of law - findings grounded in the evidence must be accepted. In this case both lower courts made concurrent findings that the appellant was the assailant, founded on the complainant's testimony, so there was no basis for interference.

The Court invoked Maitanyi v Republic and Michael Kimani Kungu v Republic, stressing the danger of visual identification. Here the complainant had known the appellant for three months, they spent about 45 minutes together in a lit bar and walked away together, and the complainant immediately named his assailant. The weapon found near the appellant matched the one used. The recognition evidence was therefore cogent and left no doubt.

The High Court faulted the trial court, correctly, for failing to warn itself about single-witness identification, an error of law per Maitanyi. However, the High Court went on to examine the circumstances - prior acquaintance, duration together, lighting - and concluded the complainant could not have mistaken the assailant. The Court of Appeal endorsed that evaluation and found no error of law in the first appellate court's treatment.

Counsel argued the appellant was not the person named by the complainant. The Court found the complainant had stated the suspect called himself Mulili Mutunga; the complainant did not know him by name but had known him to see for about three months and recognized him at trial. The arrest was based on the complainant's description, not merely the footprints, so the name discrepancy was immaterial.