Paul Njoroge Wangare v Republic

The court observed that what lay before it was a second appeal from concurrent findings of the trial court and the first appellate court, invoking the settled line of authority in Hamisi Mbela Davis and M'Riungu. Where the right of appeal is confined to questions of law, the appellate court must accept the findings of fact of the lower courts, resist treating findings of fact as holdings of law or mixed findings, and interfere only where on the evidence no reasonable tribunal could have reached the conclusion, which would render the decision bad in law.

The court found the identification grounds unsupported by any material on the record. The trial court had categorically held that the evidence of identification could not be relied on because the accused was shown to the witnesses and no identification parade was conducted; the first appellate court expressly endorsed that position, recording that the conviction rested on the strength of recent possession placing the appellant at all five robberies. Since the decision to convict was not based on identification by any prosecution witness, the complaints about dock identification and the standing orders were misconceived.

The court applied the test that recent possession requires positive proof that the property was found with the suspect, that it was reported stolen, was positively identified and was recently stolen. Laptops, mobile phones, an extension cable and a gas cylinder were identified at the police station by PW1 to PW5 and by the deceased's roommates; a Safaricom report confirmed recovered phones belonged to the victims. The appellant signed the recovery inventory without alleging force or intimidation, and his defence of a police frame-up was found to be an afterthought. Recovery about five hours after the robberies made the inference of participation irresistible.