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(2003) JELR 105701 (CA)

Court of Appeal  •  Criminal Appeal 138 of 2002  •  4 Aug 2003  •  Kenya

Riaga Samuel Cornelius Omolo, Emmanuel Okello O'Kubasu, Erastus Mwaniki Githinji



:The Republic never supported the conviction of the appellant in the High Court. They still do not do so in this Court. We agree that the conviction of the appellant was clearly unsafe. Apart from anything else, we agree with Ms. Kwena that it was not shown the source of light which enabled P.W.1 to identify the appellant at 1 a.m. in the night. The Magistrate herself and the High Court do not mention in their respective judgments the source of lighting at the place of the robbery and the position of that light relative to the position of the appellant and the person or persons who were said to be with him.

Next there was the question of law concerning identification by a single witness under what were obviously difficult circumstances. The trial Magistrate wrote her judgment straight away on the bench. She sentenced the appellant to death. In her judgment there is absolutely no indication that she was aware of the requirement that a court has to warn itself of theā€¦

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