PAUL WACHIRA MURIGU & another v REPUBLIC [2009] eKLR the counter of her shop. The thugs ordered P.W.2 to surrender her mobile phone. The thugs went to where P.W.1 had gone to hide. The thugs are said to have taken mobile phones belonging to P.W.1 and P.W.2. P.W.1 admitted she was unable to identify the thugs. P.W.2 on her part said some robbers broke into their home at midnight on 6.6.2007. One robber entered P.W.2’s room where he demanded to be given money. That robber had a torch and a panga. P.W.2 said she gave him her Motorola phone make C118. P.W.2 was taken to the shop by one of the robbers where she was raped. The thugs took P.W.2 to the main house. P.W.2 put on the lights, got Kshs. 500 which she handed over to the thugs. P.W.2 said the short robber raped her once again after which the other thug took over and started raping her. The robbers left and locked the door from outside. P.W.1 came and opened the door. P.W.2 said the thugs were with her for more than an hour. P.W.2 claimed he managed to identify the robber who had raped her when she put on the lights in their main house. She said he had a unique nose. The robber was not known to P.W.2. People came and took P.W.2 to K District Hospital. After two days P.W.2 was called upon to attend an identification parade. P.W.2 picked out the appellant. We have carefully examined the evidence of P.W.2. Her evidence is that of a single identifying witness. She said she was able to identify the 2nd appellant because he was short and had a unique nose. She said she managed to notice these features when she put on lights in their main house. It is the evidence of P.W.2 that when she put on the lights, one thug put off the same almost immediately. We are not satisfied that the conditions were conducive for positive identification that was free from error. We have come to the above conclusion because there is no evidence that P.W.2 gave the appellant’s description to the police. Secondly, the type of light was not described. We are left to wonder whether the source of light was electric or a lantern lamp. There is no description as to how bright was the light. Thirdly, we are of the view that the time the light lasted was too short to enable the witness get glimpse of the 1st appellant. We say so considering the fact that the 1st appellant was not previously known to the witness. Despite the fact that the learned Principal Magistrate convicted the 1st appellant on the evidence of a single identifying witness, she failed to warn herself of the danger of doing so before proceeding to convict. We have come to the conclusion that it was not safe to sustain a conviction on the basis of such evidence. We hereby give the 1st appellant the benefit of doubt. Consequently the appeal is allowed. The conviction quashed and set aside the sentence. The 1st appellant is hereby set free forthwith unless lawfully held. Dated and delivered this 13th day of January 2010. J.K. SERGON JUDGE M.S.A. MAKHANDIA JUDGE In open court in the presence of the appellants. http://www.kenyalaw.org - Page 4/5