Karaton Ole Lesarau V Republic  EKLR
|Criminal Appeal 78 of 1988||26 Jul 1988|
Richard Otieno Kwach, Joseph Raymond Otieno Masime, John Mwangi Gachuhi
Court of Appeal at Mombasa
Karaton Ole Lesarau v Republic
Karaton Ole Lesarau v Republic  eKLR
Lesarau v Republic
Court of Appeal, at Mombasa
July 26, 1988
Gachuhi, Masime JJA & Kwach Ag JA
Criminal Appeal No 78 of 1988
(Appeal from a Judgment of the High Court at Mombasa, Apaloo J)
Evidence – identification evidence–– identification by single witness –how the court should assess such evidence - complainant claiming to identify accused person as the offender–– complainant claiming to have known accused person for a long time but could not remember his name– accused person convicted – whether accused properly identified.
The appellant was convicted and sentenced in a magistrate’s court for the offence of stock theft. His conviction was based solely on the evidence of the complainant who claimed that he identified him as one of the persons who had attacked him and driven away his employer’s cattle.
Although the complainant claimed to have known the appellant for five years, he told the court that he did not remember his name.
Both the trial court and the High Court on first appeal rejected the appellant’s alibi and observed that he had been properly identified.
1. In case such as this one which depended solely on identification by a single witness, there was an obligation on the part of the trial court to assess and analyse the evidence of identification with meticulous care.
2. Although the trial magistrate had warned himself of the danger of convicting on the testimony of a single witness and explained why he thought the appellant’s identification by the complainant was reliable, he failed to consider the complainant’s failure to identify the appellant by name.
3. This issue was of crucial importance and had the lower courts given it due allowance, they may well have reached a different conclusion.
4. Where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name.
The identification evidence in this case was of very poor quality thus making the danger of mistaken identity even greater. That evidence could not be accepted as true and free from the possibility of error.
5. The appellant’s alibi defence was not challenged and there was no basis on which the lower courts rejected that defence.
1. Abdallah bin Wendo & another v R (1953) 20 EACA 166
2. R v Turnbull  3 All ER 549; 73 Criml App R 132;  QB 224
Penal Code (cap 63) sections 278, 296(2)
Mr Sereje for the Appellant