Peter Nganga Kinyua v Republic

PW1 did not know the appellant before the night in question, had been drinking, was in fear of his life and hiding behind a thicket at a distance from the assault, which occurred at night. The conditions therefore could not eliminate the possibility of error. The trial judge neither scrutinised this evidence with the greatest care nor warned himself of its dangers, an omission that the court held amounted to an error rendering the conviction unsafe.

PW1 gave three differing versions of events: he did not record in his statement that he saw the appellant throw a stone and strike the deceased; he claimed to have made the police report yet the report officer named two other students; and his claim of accompanying the parents conflicted with the father's testimony. The trial judge's failure to notice and resolve these contradictions against the standard of proof beyond reasonable doubt made the conviction unsafe.

The investigating officer suppressed a report in which three identifying witnesses stated that the suspect was not on the parade, and produced another report by four witnesses who were not called. The trial judge placed undue weight on the parade form. The State conceded that this undermined the identification evidence, and the court agreed that this state of the evidence could not sustain a conviction.

The rival versions were the contradictory evidence of PW1 and the appellant's account that he believed his car was being stolen and raised an alarm. The court found serious doubt that the judge was right to discount the appellant's version, which was given on oath and unshaken in cross-examination, and held that the evidence as a whole did not establish the elements of murder to the required standard.