Linus Gitau Njogu & 1 other v Republic

b. The learned trial Magistrate erred in law and fact by convicting on insufficient evidence. c. The learned Magistrate erred in law and fact by failing to consider the alibi defence tendered by the appellants. 4. The respondent opposed the appeal through M/s Vena Odero, Prosecution Counsel. She contended that the prosecution proved its case to the required standards. 5. As a first appellate court, I have thoroughly analyzed and evaluated all the evidence presented in the lower court. It is important to note that I did not see or hear any witnesses. In my evaluation, I will be guided by the influential case of Okeno v the Republic [1972] EA 32. 6. The incident that gave rise to this case occurred on 25 December 2020 at approximately 9 pm. The complainant was walking home when he was unexpectedly attacked at a location bordered by maize on one side and grass on the other. He was pounced on by two boys, whom he said he identified as the two appellants. They beat him, robbed him, and sodomised him. His evidence was that he recognised the two by moonlight. 7. It is well established that a conviction can rely on the testimony of a single witness. However, it is crucial to exercise caution before making such a decision. In Abdullah Bin Wendo v Rex 20 EACA 166, the Court of Appeal emphasized the need for careful consideration in these cases, stating: Subject to certain well-known exceptions, it is trite law that a fact may be proved by a 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. 8. The prosecution did not clarify how bright the moonlight was, which would have helped him see and identify the two people, especially considering his statement that they came out of the grass. Additionally, it was crucial to present evidence about the heights of the maize and grass to help the court determine if the vegetation could have influenced the moonlight's effect. 9. When the circumstances under which a purported recognition is made are not favourable, care must be taken to ensure no mistake is made in identification. The learned magistrate ought to have heeded the directions of Lord Widgery CJ in the case of R v Turnbull and Others [1976] 3 All ER 549, where he stated as follows: Secondly, the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be make. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? 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? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3552/eng@2026-03-18 2

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the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger: but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relative and friends are sometimes made. 10. It is doubtful if he indeed made flawless recognition of his attackers. This is sensed from the particulars of the charge, which indicated that the appellants were in the company of another who was not before the court. This contradicts his evidence, which states that he was attacked by two people, whom he identified as the appellants. 11. Francis Kimani Wanjiru (PW2) testified that the complainant mentioned only one person to him. This is Gitau wa mkahawa (meaning Gitau who works at the hotel). He, however, said that the complainant told him that he had been attacked by three people. 12. The medical evidence was adduced by Dr Martin Owuor, whose evidence was that the complainant stated that he was attacked by some people who were not well known to him. 13. The complainant did not leave the court with the impression that he was able to recognize the people who attacked him. The Court of Appeal in the case of Ndungu Kimanyi v Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held: The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, raise suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence. 14. The learned trial magistrate allowed evidence of a purported confession to be adduced contrary to the law. Section 25A (1) of the Evidence Act is very clear on how a purported confession is to be taken from an accused person. This is what it states: A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a Judge, a Magistrate or before a Police Officer (other than the Investigating Officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person’s choice. 15. The testimonies of Ann Waceke Kang’ethe (PW3) and PC Stanley Kipyegon (PW6) regarding the alleged confession were inadmissible, which compromised the fairness of the trial for the appellants. This constituted a mistrial. Had there been additional evidence supporting the charges, I would have called for a retrial. However, no such evidence exists in the record. 16. The conclusion from the above analysis is that the appellants' convictions relied on insufficient evidence. Therefore, the convictions are quashed, and the sentences are set aside. Each appellant is to be released unless they are lawfully detained for other reasons. DELIVERED AND SIGNED AT NYANDARUA, THIS 18TH DAY OF MARCH, 2026. KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3552/eng@2026-03-18 3

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