Njiru Benson & Elias Nkonge v Republic [2015] KECA 106 (KLR)

The Court adopted Wamunga and R v Turnbull: where the quality of identifying evidence is poor because observation was fleeting or made in difficult conditions, the danger of mistaken identification is high and the case should be withdrawn unless there is supporting evidence. Here the robbers pelted rescuers with stones, forcing them into a maize plantation, and no precise descriptions of facial or bodily features were given, so the quality was unsatisfactory.

Following Libambula v Republic, voice identification is admissible and can carry as much weight as visual identification, but the court must ensure the witness was familiar with the voice and that conditions at the time excluded mistake. Several robbers spoke simultaneously amid screams, confusion and stone-throwing, and the witnesses never demonstrated familiarity with the 1st appellant's voice.

A second appeal is confined to matters of law. While concurrent findings of fact are normally not disturbed, the Court found a compelling reason because the identification evidence was unsatisfactory. The first appellate court did not probe the intensity of the moonlight, the absence of an initial report to police, or the failure to call the identification parade officer, and did not conduct the fresh exhaustive examination required.

Citing Johanna Ndung'u and Oluoch v Republic, the Court accepted that the robbers were armed with axes and clubs and were more than one, satisfying the offence's elements. The critical unresolved question was who robbed the complainant, and on the unsatisfactory identification evidence the 1st appellant's conviction was unsafe.