John Nderitu Mburu v Republic

The Court found PW1's evidence proved he was attacked with a metal rod, rendered unconscious, and robbed of the items in the charge sheet, by an attacker in the company of others and armed. These are matters of fact with concurrent findings by the two courts below, which a second appellate court cannot disturb absent total absence of evidence or perversion of the evidence.

The Court distinguished positive identification from recognition evidence, holding recognition more reliable because it depends on personal knowledge. Despite the night-time robbery, PW1 used his torch, greeted the appellant whom he knew well, and the appellant ordered his accomplices to finish PW1 because he had been recognized. Night identification must be watertight; the Court found this was so.

The Court noted its duty is to consider matters of law arising from issues canvassed before the High Court. Neither ground appeared in the petition of appeal or amended grounds before the High Court. Relying on the Supreme Court's Gitonga decision on respect for judicial hierarchy, the Court declined to entertain freshly introduced grounds, as that would abuse court process.

The Court set out the standard: an appellate court must check that the trial court considered all the material evidence and correctly applied the law, and a material omission amounts to misdirection justifying interference. Here the High Court expressly considered the appellant's testimony, found he called no supporting witnesses, and that his defence corroborated the prosecution evidence.

Although Muruatetu declared the mandatory death penalty under section 204 of the Penal Code unconstitutional, the Supreme Court subsequently directed that the decision applies only to murder cases. The appellant was convicted of robbery with violence, so the mandatory death sentence for that offence was unaffected and there was no basis to interfere.