Longiroi Atidong v Republic

The Court applied the settled principle that a first appellate court must analyse the evidence afresh while making allowance for the trial court's advantage of observing witnesses' demeanour. Having reviewed the reproduced passage of the High Court judgment and re-evaluated the record itself, it concluded that the trial judge had subjected the entire evidence to scrutiny and arrived at a correct finding, so the first ground of appeal failed.

The Court distinguished recognition from first-sight identification: PW1 and PW3 knew the appellant and his co-assailants intimately (relatives and neighbours who had grown up together), heard them speak for some time, and named them. The authorities (Karani v R; Choge v R) confirm voice identification can carry as much weight as visual identification. Night conditions were irrelevant where recognition, not visual identification, was in issue.

The evidence left doubt as to who among the four hurled the stone, but the four had expressed an intention that someone die in the deceased's homestead and acted in concert. Section 21 of the Penal Code deems each participant to have committed the offence where the offence was a probable consequence of the common unlawful purpose. Malice aforethought under Section 206 was accordingly established; it mattered not who inflicted the killing blow.

PW1's account of the words spoken differed slightly between examination-in-chief and cross-examination, and PW3 at one point said Leng'ole hit the father before reverting to the accused having hit him with a stone. The Court held these were minor contradictions that did not undermine the core, unchallenged evidence placing the appellant among the four assailants, so the conviction stood.