JUDGMENT
Mr. Musau, learned counsel for the republic concedes that the convictions recorded against the two appellants by the trial magistrate and subsequently confirmed by the High Court (Tanui and Gacheche JJ) are not supportable.
We think Mr. Musau is right in conceding the appeals.
The robbery, the subject matter of the charge, was committed against the complainant (PW1), late at night. The complainant did not know the people who had been involved in the robbery. The learned judges of the High Court thought, wrongly, that the complainant had known the appellants before and was thus able to recognize them during the robbery. With respect to the learned judges, PW1 was purporting to have identified the appellants by the aid of a lamp which was on in the house. The issue was one of identification not recognition so that when the judges say in their judgment that:-
“Upon review of the evidence that was produced before the trial court, we find that it was not a case of identification, but …