Abanus Nzioka Mang’oka v Republic

“It is trite law that where the only evidence against a defendant is evidence 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 possibility of error before it can safely make it the basis of conviction”. 11. In the cases of Nzaro v. Republic [1991] KAR 212 and Kiarie v. Republic [1984] KLR 739 the Court of Appeal held that evidence of identification/recognition at night must be absolutely watertight to justify conviction. 12. In R .v. Turnbull & others [1973] ALL ER 549, the court set out the factors which ought to be considered when the only evidence turns out on identification. The court held: - “…The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the accused under observation” At what distance| In what light” Was the observation impeded in any way…” Had the witness ever seen the accused before” How often” If only occasionally, had he any special reason for remembering the accused” how long elapsed between the original observation and the subsequent identification to the police” Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance” Recognition may be made reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” 13. The incident in this case took place at night. The complainant stated that there were street lights at the place where she met the appellant and that she had never met the appellant before. The appellant then led her to some secluded part with flowers where there was no lighting. He then attempted to defile her. 14. PW1 was categorical that she saw the person who accosted her remove his shirt and trouser. The shirt was blue in colour and the trouser was a jean. He had given her his phone but she handed it over to him before she run away. That aspect of the evidence was very crucial as far as the identity of the attacker was concerned. 15. She then said that after running away from her attacker, she told a man she met what was happening. That man called boda boda people who came and beat up the appellant. That the appellant was found when fully dressed up with different clothing from the ones he had when he had attempted to defile her. 16. According to PW3 he was with PW2 when the child came running crying for help. The appellant was chasing her at high speed and trying to put on his trouser. PW2 however did not see the appellant chase the complainant. 17. The trial court did not address these issues. The question that arises is; was the person who held the hand of the complainant from the road and led her to the flower bush and who removed a blue shirt and trouser jeans, the same person whom PW2 and PW3 found and assaulted? Given, when PW1 saw the appellant being assaulted by PW2 and others, he had different clothes from the ones he allegedly had at the time of the attempted defilement. The trial court did not consider this fact. 18. It was not shown that PW1 never lost sight of her attacker. She run away and left the attacker in the flower bushes. There was time lapse between the attempted defilement and the time the appellant was arrested. PW1 run a distance of 25 metres. It took sometime for PW2 to call the bodaboda people to come and accost the appellant. There was no evidence to show that there were other clothes recovered from the scene. When the appellant was arrested, he had different clothing. 19. The other aspect was the phone that the attacker had. None of the witnesses, including PW2 and PW3 who seem to have been the earliest people to come into contact with the incident, PW1 and the appellant, mentioned about the phone, PW1 stated that she had given back the attacker his before she took off. No one stated that the appellant was found with a phone. 20. To this court’s mind, the investigations officer did not investigate these two aspects. She left the court to reconcile them, which it did not. 21. It should be remembered that the appellant had cross-examined both PW2 and PW3 about a miraa deal between them which had gone sour. The trial court did not state why it disbelieved him on it and chose to believe PW2 and PW3. It is important for a trial court to indicate or point out instances of demeanor which it notes during a trial and which it relies upon as a basis of accepting the evidence of one witness over the other. In this case the trial court did not do so. 22. With the foregoing shortcomings, it will be clearly unsafe to convict the appellant on the evidence on record. His identification as the perpetrator of the offence was not proved beyond reasonable doubt. It was not for him to explain his innocence. 23. In the circumstances, I find that the appeal has merit and I allow the same. I quash the conviction and set aside the sentence. The appellant is to be set at liberty forthwith unless otherwise lawfully held. DATED and DELIVERED at Mombasa this 11th day of September, 2019. A. MABEYA JUDGE

page 2 of 2