Michael Norman Mbachu Njoroge & 1 other v Republic

Section 361(1)(a) of the Criminal Procedure Code restricts second appeals to matters of law, excluding matters of fact and severity of sentence. The court accepted counsel's submission that the three complaints raised went to the legal sufficiency and evaluation of the evidence rather than to factual findings as such, and therefore entertained the appeal notwithstanding the concurrent findings below.

Neither the trial magistrate nor the High Court sufficiently evaluated the identification evidence. The appellants were not arrested at the scene or on the basis of any description by the witnesses; they were beaten and bloodied when shown to the witnesses, making positive identification implausible. The witnesses did not know the appellants before the incident, so their identification was equivalent to identification in the dock, which requires a preceding identification parade to have any value.

The three police witnesses gave irreconcilable accounts of where and by whom the weapons were recovered, and it was clear the weapons were recovered by members of the public. Since no member of the public testified, it could never be established from whom the weapons were recovered or how the appellants were identified by those who arrested them. This evidential gap, conceded by the State, left the prosecution case resting on worthless dock identification.

The court observed that the prosecution's failure to lead evidence of the chase from the scene to the point of arrest meant the appellants' account was never displaced. This failure, combined with the broken chain of custody and worthless identification, meant the appeal had to succeed even against concurrent findings of the two courts below.