Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal No. 11 of 2015· [2015] KECA 445 (KLR)

Alex Lichua Lichodo v Republic [2015] KECA 445 (KLR)

Court of Appeal of Kenya
31 July 2015
AVAlnashir VisramWKW. KaranjaPhilomena Mbete MwiluP. M. Mwilu
2,366 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that one witness who positively identifies an attacker is enough for a conviction, even without extra witnesses.

What this practically means

#

Executive summary

#
The appellant, an Administration Police constable, was convicted by the Senior Principal Magistrate's Court at Limuru of robbery with violence contrary to section 296(2) of the Penal Code and escape from lawful custody, and sentenced to death and one year respectively. His first appeal to the High Court (Msagha & Achode, JJ.) was dismissed on conviction, though the sentence for escape was set aside and held in abeyance. On second appeal to the Court of Appeal (Visram, Karanja & Mwilu, JJ.A), the appellant argued that the courts below wrongly relied on the evidence of a single identifying witness without adequate warning, that the prosecution failed to prove its case beyond reasonable doubt, that section 169 of the Criminal Procedure Code was breached, and that his constitutional rights were violated. The Court framed two issues: the sufficiency of single-witness identification evidence and the effect of an alleged failure to call crucial witnesses. Restating that a second appeal is confined to matters of law and that concurrent findings of fact will not be disturbed absent absence of evidence, misapprehension of evidence, or wrong principles, the Court held that PW1 identified the appellant positively, holding onto him until members of the public apprehended him, and that PW3 and PW4 knew him beforehand. Both lower courts had properly warned themselves on single-witness identification. Under section 143 of the Evidence Act, no particular number of witnesses is required, and the prosecution's choice of witnesses lies within its discretion. The appeal was dismissed. No costs order was made.

Key legal issues

#
01

Sufficiency of identification evidence of a single witness

Holding

The evidence of a single identifying witness is sufficient to sustain a conviction where the courts below warned themselves of the dangers of such evidence and the identification was positive; the first appellate court did not err in upholding the conviction.

Reasoning

PW1 held onto the appellant as he screamed for help, and members of the public apprehended him immediately; PW1 never lost sight of the assailant. PW3 and PW4 also identified the appellant because they knew him prior to the incident as an Administration Police officer. Both the trial court and the first appellate court warned themselves of the dangers inherent in relying on a single identifying witness, and recognition of a known person is more reliable than identification of a stranger.

p. 4
02

Failure to call crucial witnesses

Holding

The prosecution was under no duty to call additional witnesses; the complainant's evidence was sufficient and the calling of witnesses is a matter within the prosecution's discretion.

Reasoning

Section 143 of the Evidence Act abolishes any requirement of a particular number of witnesses. The complainant's evidence was sufficient and convincing, so there was no need to call more witnesses on the identification issue. The Court reaffirmed that the choice of witnesses lies within the prosecution's discretion and an appellate court will not interfere absent an oblique motive.

p. 4
03

Scope of a second appeal

Holding

A second appeal is confined to points of law; the Court will not disturb concurrent findings of fact unless based on no evidence, on a misapprehension of the evidence, or on wrong principles.

Reasoning

Relying on Chemangong vs R and Kaingo vs R, the Court restated the settled limits of second appeals. Because the appellant's complaints went to the factual assessment of identification evidence and witness credibility, and the two courts below had concurrently and properly directed themselves on the law of identification, the Court had no basis to interfere.

p. 3

Legal principles established

#
  • On a second appeal the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact of the two courts below unless such findings are based on no evidence, on a misapprehension of the evidence, or on wrong principles.
  • A fact may be proved by the testimony of a single witness, but the need to test with the greatest care the evidence of a single identifying witness remains, especially where conditions favouring correct identification are difficult.
  • Whether a witness should be called by the prosecution is a matter within the prosecution's discretion and an appellate court will not interfere with that exercise of discretion unless it is shown to have been influenced by some oblique motive.

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.The concurrent findings of the two lower courts on identification and on the sufficiency of the prosecution's witnesses are not disturbed

Authorities

#

Legislation

  • Penal Code, Chapter 63, Laws of Kenyasection 296(2)
  • Penal Code, Chapter 63, Laws of Kenyasection 123
  • Criminal Procedure Codesection 169
  • Evidence Act, Chapter 80, Laws of Kenyasection 143

Cases cited (11)

  • Chemangong vs R
    [1984] KLR 611
  • Kaingo vs R
    (1982) KLR 213
  • Reuben Karari C/o Karanja vs Karanja vs R
    (1956) 17 EACA 146
  • Richard Gitau Njogu vs R
    Criminal Appeal No. 128 of 2005 (Nairobi)
  • John Njoroge Mwangi vs Republic
    Criminal Appeal No. 55 of 2007
  • Abdulla Bin Wendo & Another vs Reg
    (1953) 20 EACA 166
  • Roria vs Republic
    (1967) EA 583
  • Ogeto vs Republic
    (2004) 2 KLR
  • Maitanyi v Republic
    Cr. App No. 60 of 1986 (1986) KLR 198
  • Anjononi & Others vs Republic
    (1976-80) 1 KLR 1566
  • Julius Kalewa Mutunga vs Republic
    Criminal Appeal No. 31 of 2005
On appeal from
High Court of Kenya at Nairobi
H. C. Cr. A. No. 57 of 2010
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (matters of law only); judgment rendered as a single 'JUDGMENT OF THE COURT' without citing a specific constitutional provision

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (21)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Alex Lichua Lichodo v Republic [2015] KECA 445 (KLR)", Case Analysis (2015). Criminal Appeal No. 11 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/445/eng@2015-07-31

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