[1979] KECA 23 (KLR)
The Court of Appeal held that, on a second appeal, its jurisdiction is confined to points of law. The court found that both the trial magistrate and the High Court on first appeal properly directed themselves on the dangers of convicting on the evidence of a single witness at night. The complainant and the appellant...
Source-derived case information.
- Citation
- [1979] KECA 23 (KLR)
- Parties
- Appellant: Njeri; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 27 of 1977
- Procedural Posture
- Criminal Appeal / Second Appeal From Conviction and Sentence
- Outcome
- appeal dismissed
- Legal Topics
- Identification Evidence, Voice Identification, Single Witness, Standard of Proof, Appeals on Points of Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njeri
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From Conviction and Sentence
Legal Issues
- 1 Whether the conviction based on the evidence of a single identifying witness at night was safe and free from error.
- 2 Whether identification by voice is less satisfactory than visual identification in criminal cases.
- 3 Whether the sufficiency of evidence can be reviewed on a second appeal limited to points of law.
Ratio Decidendi
The Court of Appeal held that, on a second appeal, its jurisdiction is confined to points of law. The court found that both the trial magistrate and the High Court on first appeal properly directed themselves on the dangers of convicting on the evidence of a single witness at night. The complainant and the appellant were neighbours and had known each other for many years, which minimized the risk of mistaken identity. The court further held that identification by voice can be as reliable as visual identification, especially where the parties are familiar with each other. Since there was some evidence implicating the appellant and no misdirection or misapprehension of evidence by the lower...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL FOR EAST AFRICA
AT NAIROBI
( Coram: Madan, Law JJA & Miller Ag JA )
CRIMINAL APPEAL NO. 27 OF 1977
BETWEEN
NJERI.................................................................................APPELLANT
AND
REPUBLIC...................................................................RESPONDENT
JUDGMENT
The appellant was convicted of doing grievous harm to the complainant Teresiah, contrary to Section 234 of the Penal Code, by the Resident magistrate at Kiambu. She appealed to the High Court, but her appeal was dismissed.
The case against the appellant was that as the complainant was passing the house of the appellant at Gathanga Village on March 29, 1976, she saw a group of persons standing by the side of the road. It was 10 pm and presumably dark. The complainant deposed that she heard the appellant say “there she is passing, break her legs.” The complainant was then violently assaulted and lost consciousness. The next thing she knew was that she was at Kiambu Hospital, where she remained as an in-patient for over six weeks, suffering from a compound fracture of the skull and of the left tibia and fibula. When seen by a policeman a few days after being admitted to hospital, she named the appellant as the assailant.
The case against the appellant was not a strong one. The learned trial magistrate carefully directed herself as to the danger inherent upon convicting on the evidence of a single witness at night. It was common ground that the complainant and the appellant were neighbours, and that they had known each other since 1960. The learned magistrate was satisfied that there was no possibility of error in the identification. The learned High Court judges on first appeal came to the same conclusion.
On a second appeal this court is concerned only with points of law. Once it is established that there was some evidence to support a conviction, this court will not on a second appeal examine the sufficiency of that evidence. There was some evidence implicating the appellant in this case, although it may not have been strong evidence. The sufficiency or otherwise of that evidence does not constitute a question of law. As the learned High Court judges observed, a conviction can in law be based on the evidence of a single identifying witness. It is only if a conviction is based on no evidence or if the courts below have misapprehended evidence or misdirected themselves in relation thereto, that a question of law arises on a second appeal.
Mr Otieno has submitted that identification by voice is less satisfactory than visual identification. In our view it can be equally safe and free from error, more so if the identification takes place at night. We agree with the two lower courts that in the particular circumstances of this case, the appellant and the complainant being familiar with each other for many years, the possibility of error was excluded.
We see no merit in this appeal, and order that it be dismissed.
Dated and Delivered at Nairobi this 15th day of May 1979.
C.B.MADAN
..................................
JUDGE OF APPEAL
E.J.E.LAW
....................................
JUDGE OF APPEAL
C.H.E.MILLER
......................................
AG.JUDGE OF APPEAL
I certify that this is a true copy of the
original.
DEPUTY REGISTRAR