|Criminal Appeal 79 of 1981
|John Anditi v Republic
|20 Nov 1981
|Court of Appeal at Nairobi
|Eric John Ewen Law, Chunilal Bhagwandas Madan, Kenneth D Potter
|John Anditi v Republic  eKLR
|Mr Ogutu for Appellant
|Mr Ogutu for Appellant
Anditi v Republic
Court of Appeal, at Nairobi November 20, 1981
Madan, Law & Potter JJA
Criminal Appeal No 79 of 1981
Evidence - identification - accused chased and caught at night as he tried to escape from the scene - area illuminated by electric lights - appellant seen dropping an object – whether circumstances favourable to positive identification – possession of distinctive article.
The appellant was convicted of burglary contrary to Section 304(2) and stealing from a dwelling house contrary to Section 279(b) of the Penal Code.
A neighbour, saw the appellant coming out of the complainant’s house with a suit case at 7.30 pm of that fateful night. She alleged to have shouted at him and asked him what he was doing. He dropped the suit case and ran off. She saw him again pick up an electric iron which was lying hidden in grass in front of the complainant’s house. She alerted the complainant who caught up with him and took him to the police station with the iron. There was no any other evidence against the accused. The trial magistrate convicted him and the High Court dismissed his first appeal.
On his third appeal to the Court of Appeal it was argued that the evidence of identification was unsatisfactory in that it was the evidence of a simple eye witness at night and that the court below admitted it uncorroborated and without warning itself.
1. In assessing evidence, a magistrate should not only look at the honesty of the witness. The magistrate has a duty to take into account the possibility that the witness is mistaken. Failure to take this into account is an error.
2. It is trite law that facts proved by a single witness can form the basis for a conviction. But this rule does not lessen the need to test with great care the evidence especially when it is identification made under unfavourable conditions. In such a case there must be other evidence circumstantial or direct pointing to guilt. The judge erred in convicting on the basis of such uncorroborated evidence.
Appeal allowed. Conviction quashed.
1. Roria  EACA 583
2. Kamau  EACA 139
3. Abdalla Wendo  20 EACA 166
Penal Code Sections 279(b) & 304(2)
Mr Ogutu for Appellant
|One party or some parties represented
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE COURT OF APPEAL
( Coram: Madan, Law & Potter JJA )
CRIMINAL APPEAL NO. 79 OF 1981
Madan JA The appellant was convicted by the Resident Magistrate, Nairobi, of burglary contrary to Section 304(2), and stealing from a dwelling house contrary to Section 279(b), of the Penal Code. His appeal to the High Court was dismissed. He appealed again, to us.
We allowed the appeal, quashed the convictions and set aside the sentences. We now give the reasons for our judgment.
The house of Peterson Njoroge was broken into on the night of January, 21, 1981, and a good deal of his property worth about Kshs 6,000 stolen therefrom.
A neighbour, Willibroda deposed that she saw the appellant by the street lights coming out of Njoroge’s house with a suitcase at 7.30 pm. When Willibroda spoke to him and asked him what he was doing, he pushed the gate which hit her. The appellant then dropped the suitcase and ran off. The suitcase contained several articles, the property of Njoroge which he identified.
Willibroda deposed that she saw the appellant again with another man coming towards her house at lunch time the next day. She recognised the appellant as the man she met the previous evening carrying Njoroge’s suitcase. She saw the appellant pick up an electric iron (described in the record as an iron box) which was lying hidden in grass in front of the complainant’s house and wrap it in paper which he had in his hand. Willibroda pointed out the appellant to Njoroge who was repairing his door at the time. The appellant’s friend ran off. Njoroge took the appellant and the electric iron which belonged to him to the police station.
Mr Ogutu for the appellant made it his main ground of appeal that the evidence of identification was unsatisfactory in that it was the evidence of a single eye-witness at night, and that neither court below warned itself of the dangers inherent on convicting on the uncorroborated evidence of a single witness in circumstances unfavourable to accurate identification. Mr Ogutu also submitted that evidence relating to the appellant picking up an electric iron out of the grass in front of the complainant’s house was irrelevant, as any passer-by would have stopped to pick up an electric iron which he happened to notice was lying in the grass. We saw some merit in this submission, and thought that this appeal should be decided solely on the evidence relating to the events of the night of January 21.
The appellant was convicted on the evidence of a single identifying witness Willibroda. We once again set out, as a general guidance, the following passage from Abdala Wendo , 20 EACA 166 at p 168:
“Subject to certain 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 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.”
In the present case Willibroda impressed the magistrate as a witness of truth whose evidence could be relied on. We do not quarrel with his assessment of her honesty but a witness may be honest yet mistaken, and in excluding the possibility of a mistake on her part, the magistrate erred in our view. It was night time. Willibroda saw the appellant only by street lights. On the facts the conviction could not stand. Roria , EACA 583; Kamau  EACA 139.
As Law and Potter JJA agree, it is so ordered.
Dated and Delivered at Nairobi this 20th day of November 1981.
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a true copy of the