Meso Okoth Meso v Republic

" 2. and " 4. 2. That the Honourable Judge did not consider the fact that an identification by a single witness without corroboration is dangerous; The Honourble Judge did not consider that the Magistrate did not warn himself of the dangers of convicting on the evidence of a single witness.” These two grounds of appeal obviously refer to the well-known case of Roria v Republic [1967] EA 583 which in turn relied on the earlier case of Abdalla Bin Wendo and another v R (1953) 20 EACA 166. In these cases it was laid down that: " Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence whether it be circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.” 3. The courts in this country have invariably applied these principles, and for our part, we have no intention of questioning them; it is too late in the day to do that, even if we were minded to do it. Moreover, the principles were laid down from the benefit of those charged with criminal ofiences and they (ie principles) merely strengthen the well-known principle of the criminal law that in all criminal prosecutions, the burden of proof is for ever and invariably on the prosecution and the standard of proof is one beyond any reasonable doubt. Having said that, however, we must point out that the principles must be applied to the circumstances of each individual case. In Roria’s case supra, the court took into account the fact that the assessors who assisted the trial Judge were of the unanimous opinion that the appellant was not guilty, that the appellant was not known to the witness who purported to identify him at night, that the conditions under which the witness identified the appellant were unfavourable to the correct identification, that the purported identification of the appellant’s co-accused by other inmates of the manyatta was found unrealiable and to the discrepancies in the evidence of the identifying witness as to the circumstances of identification. Taking into account all these factual issues, the court in Roria’s case was of the view that it would be unsafe to rely solely on the identification of Roria by the single identifying witness. One last thing about Roria’s case. It was a first appeal to the Court of Appeal for Eastern Africa and that being so, the appellant was entitled to expect the court to discharge its duty: " ...............to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld” 4. See Okeno v Republic [1972] EA 32 and also Gabriel Kamau Njoroge v Republic [1982-88] 1 KAR 1134. Mr Mwamu for the appellant relied on the latter case. 5. What is the position in the appeal before us? The Magistrate found as a fact that Peter Otieno Ochieng (PW2) knew the appellant well as he and the appellant were from the same neighbourhood. The learned Judge confirmed that finding. The Magistrate also found that PW2 was armed with a torch as is normally the case with most watchmen, that PW2 had fiashed his torch on and recognized the appellant. These findings were also confirmed by the Judge on first appeal. Then it was found as a fact https://new.kenyalaw.org/akn/ke/judgment/keca/1999/190/eng@1999-06-17 2

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that PW2 had on the very first available opportunity reported to Jacinta Onyango (PW1) that it was the appellant who had broken into the shop. Once again the Judge confirmed this finding. All these were findings of facts by the two lower courts and this court can only interfere with them if it can be shown either that there was absolutely no evidence or that the evidence that was there was insufficient to sustain them. We did not understand Mr Mwamu to contend so. Accordingly, there cannot be any basis for the court to interfere with the findings of facts made by the magistrate and confirmed by the first appellate court. 6. Accepting those findings as we must do, we must inevitably conclude that PW2 knew the appellant well, that he fiashed his torch at him, immediately recognized him and thereafter gave his name to PW1 and the police. The two courts below were satisfied that the circumstances under which PW2 recognised the appellant were not difficult or unfavourable to positive identification. We agree and that being our view of the matter, this appeal must fail. The sentence imposed on the appellant being a lawful one, this court can have no business with it. 7. Our final order shall be and is that the appeal is dismissed. DATED AND DELIVERED AT KISUMU THIS 17TH DAY OF JUNE , 1999. ZR CHESONI ………… CJ RSC OMOLO …………………… JUDGE OF APPEAL AB SHAH …………… JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/1999/190/eng@1999-06-17 3

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