Leonard Sifuna Masika v Republic

The Court held that PW1's immediate statement to PW3 that she could see and identify her attacker, echoed by PW2 in his report to police, cushioned the absence of a description, and the subsequent parade added momentum. The Court acknowledged the James Tinega Omwenga warning on dock identification but found that here the appellant was readily identified by PW2, who alerted police leading to the arrest, making the lack of description immaterial.

The Court identified two fundamental flaws: the contradiction between PW6 (about 6 members) and PW7 (8 members), which had to be resolved in the appellant's favour, and the fact that the appellant alone held a phone and earphones, standing out like a sore thumb and greatly prejudiced. Nevertheless, since the appellant was readily identified by PW2 whose identification opportunity was independent of the parade, the flaws did not vitiate the conviction.

The electricity lights were on, the attacker did not disguise himself, and there was considerable conversation between the attacker and the victims over a prolonged ordeal. The trial court's and the High Court's findings on the favourable conditions for identification were concurrent findings of fact which a second appellate court cannot disturb, and the Court found no error in law or legal principle in the application of the Maitanyi factors.

Relying on section 33 and section 77 of the Evidence Act and Sibo Makovo, the Court held that where the maker of a document is unavailable, another person may identify the signature and produce it. Dr Mansur had worked with Dr Adoka for five years. The appellant also failed to cross-examine PW5, undermining the challenge. The point did not therefore render the prosecution evidence incompetent.

The Court noted the alibi question was raised for the first time in the second appeal, not before the High Court. What the appellant described was not an alibi: he said only that he was at his barber shop when arrested, which says nothing about the night of the offence. Applying the principles in Erick Otieno Meda, the limb was a complete non-starter.

The trial magistrate had given a detailed ruling on sentence taking into account the trauma inflicted on the survivor, and the High Court confirmed it. The Court distinguished the sentence from a life sentence, holding it to be a term sentence properly exercised under the statutory minimum of ten years and maximum of life. The respondent's concession based on Evans Nyamari Ayako did not persuade the Court to interfere.