David Muchira Mburu v Republic

learned trial magistrate erred in his finding that the prosecution had proved the charges preferred against the appellant beyond any reasonable doubt and in consequently convicting him as charged. If my answer to this question will be in the negative, then I will proceed to determine whether the sentence meted out against the appellant was lawful. 9. In order to resolve the first issue, it is important to summarise the evidence that was presented before the trial court. The prosecution in support of its case called a total of five witnesses. The complainant testified as PW1. After a brief voire dire examination, she narrated how on 7th January 2013 at about 8pm, a man she identified as Muche found her playing with another child called LW and took her to a shop. He bought her some sweets after which he pushed her to the shop’s corridor, undressed her and defiled her. 10. After the ordeal, she dressed and went back home. She identified that man to be the appellant in this case. The appellant allegedly defiled her for the second time the following day at around the same time (8pm) after he ordered her to lie on the grass near Sam’s shop. After she went home that night upon enquiry by her mother (PW2) and father (PW3), she told them what the appellant had done to her. PW2 and PW3 reported the matter to Wanguru Police Station after which the appellant was arrested by PW4. 11. After reporting the incident to the police, PW1 was issued with a P3 Form and was treated at Kimbimbi Hospital on 9 th January 2013. On the same date, she was examined by PW5 Lucy Wangui Kariuki, a clinical officer who also completed the P3 Form. She produced the treatment notes and P3 form as Pexbts 1 and 2 respectively. 12. In her evidence, PW5 recalled that upon examining PW1, she found a lacerated wound around her vaginal canal and noted that the hymen was freshly broken. There was a smelly discharge from her genitalia. She concluded that PW1 had been defiled. 13. In his defence, the appellant decided to give an unsworn statement. He did not call any witness. In his brief statement, he narrated how he was arrested and denied having committed the offence as charged. 14. After analysing the evidence tendered in this case, I have no doubt in my mind that the complainant was indeed defiled as evidenced by the medical evidence adduced by PW5. The question I must now answer is whether the prosecution had adduced sufficient evidence to prove beyond any doubt that it is the appellant who had committed the offence. 15. In his judgment, the learned trial magistrate after analysing the evidence on identification tendered by the prosecution made a finding that the appellant was positively identified by PW1 as her assailant. He expressed himself in the following terms: “Despite the fact that, the complainant, was not asked by the prosecution to clarify whether or not at Mama Lucy’s home, Mama Bancys kiosk, Sams shop and at the corridor where her sojourn’s with the “Muche” began paused and climaxed respectively there were any sources of light which would enable her see “the Muche” clearly. I have no doubt in mind that following the prolonged friendly interaction between the complainant and “the Muche” the complainant was able and in a position to identify the person she was dealing with on both occasions.” 16. The learned trial magistrate appreciated that the prosecution did not adduce evidence to prove that there was any source of light at the places where the complainant allegedly interacted with the appellant despite the fact that the offence was committed at night. 17. As correctly pointed out by the trial court, this case turned on the evidence of PW1 since no independent witness was called to support her identification of the appellant as her assailant. It is trite law that evidence of identification at night especially by a single witness must be treated with great caution because if the circumstances prevailing at the time of the commission of the offence are not conducive to a clear and positive identification, mistakes are likely to occur. 18. In R V Turnbull & Others, [1976] 3 All ER 549, the court held that mistakes can be made even in the recognition of friends and close relatives and that an honest witness may nonetheless be mistaken. This position was further reiterated by the Court of Appeal in Kiarie V Republic, [1984] KLR 739 where the court stated as follows: “It is possible for a witness to be honest but mistaken and for a number of witnesses to all be mistaken. Where the evidence relied on to implicate an accused person is entirely of identification, that evidence should be water tight to justify a conviction.” Again, in Wamunga V Republic, [1989] KLR 424, the Court of Appeal had the following to say on identification: “It is trite law that where the only evidence against a defendant is of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from the possibility of error before it can safely make it the basis of a conviction.” 19. It must be noted that in this case, the prosecution was not relying on the evidence of identification by a number of witnesses but as appreciated by the trial court, the evidence turned on the evidence of a single identifying witness. The trial court properly addressed its mind to the general rule that such evidence ought to be examined with great care. The trial court correctly referred to the Court of Appeal decision in Maitanyi V Republic, [1986] KLR 198 where the court emphasized this principle and expressed itself thus: “Subject to 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

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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.’’ 20. In this case, though PW1 claimed to have identified or recognized the appellant as her assailant, she did not disclose in her evidence how exactly she was able to identify or recognize the appellant. She did not specify whether it was through visual identification, voice identification or any other form of identification. Given that there was no evidence to prove that there was any kind of light in any of the places where the complainant said she interacted with her assailant, it is difficult to establish how PW1 was able to see and identify her assailant. If the identification was made through voice recognition, for instance, such identification would be most unreliable since no evidence was adduced to prove that the complainant previously knew the appellant well enough and was actually familiar with his voice. 21. In this case, the trial magistrate held that owing to the prolonged friendly interaction between the complainant and “Muche”; the complainant was in a position to identify the person she was dealing with on both occasions. My analysis of PW1’s evidence does not show that there was any prolonged friendly interaction between PW1 and her assailant. . Her evidence was simply that the said “Muche” would find her playing, call her to a shop near where he defiled her after which she would immediately dress up and leave. 22. In my view, considering that the offence was committed at night and there was no evidence that there was any source of light at any place where PW1 claims she interacted with her assailant, it is my finding that the circumstances prevailing at the time the offence was committed were not conducive to a correct, clear and positive identification of the victim’s assailant. 23. The fact that PW1 identified the appellant at the dock as the person who had defiled her without explaining how she was able to make that identification is not sufficient to form the basis for a safe conviction. In the absence of any evidence that the scene of crime was illuminated by sufficient light and considering that the offence was committed at night, the possibility that the complainant could have mistaken another person for ”Muche’’ cannot be overruled. It is my finding that the complainant’s evidence on identification amounted to dock identification which has been held to be worthless unless preceded by solid previous identification- See: Ajode V Republic [2004] 2 KLR 81. 24. After evaluating the evidence on record, I have come to the conclusion that the circumstances prevailing in this case were not favourable to an identification that was credible, reliable and one that was free from the possibility of error. 25. It was the duty of the prosecution to prove the charges preferred against the appellant beyond any reasonable doubt. The appellant in his defence denied having committed the offence. He did not have any duty to prove his innocence. 26. For the foregoing reasons, I am satisfied that the prosecution failed to prove beyond any reasonable doubt that it is the appellant who had sexually assaulted the complainant as alleged. The learned trial magistrate casually interrogated the evidence on identification and came to the erroneous conclusion that the appellant was positively identified as the complainant’s assailant. For the foregoing reasons, I find merit in the appeal against conviction and it is hereby allowed. 27. The appeal against conviction having succeeded, it follows naturally that the appeal against sentence must also succeed since the conviction on which sentence was anchored must now be quashed. The appeal against sentence is consequently allowed. 28. In sum, the appeal is allowed in its entirety. The appellant’s conviction is quashed and the sentence set aside. He shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered. DATED and SIGNED at NAIROBI this 8th day of October 2019. C. W. GITHUA JUDGE DATED and DELIVERED at KERUGOYA this 11th day of October 2019. L. W. GITARI JUDGE

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