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David Mutua v. Republic

(2006) JELR 102808 (CA)

Court of Appeal  •  Criminal Appeal 22 of 2002  •  12 May 2006  •  Kenya

Coram
Philip Kiptoo Tunoi, Samuel Elikana Ondari Bosire, William Shirley Deverell

Judgement

JUDGMENT OF THE COURT

DAVID MUTUA, the appellant, and three others whose convictions were quashed on appeal by the superior court in its appellate jurisdiction were convicted by the Senior Resident Magistrate, Meru, of the offence of robbery with violence contrary to section 296(2) of the Penal Code and each sentenced to death being the mandatory sentence under the law. The appellant’s first appeal was dismissed by the superior court and hence this is a second appeal.

The facts presented to the trial court by the prosecution are simple. During the night of the 25th and 26th April, 1998 at about 1:00 a.m., the complainant, Zakaria Kaigera (PW1) was asleep in his house at Kienderu Village in Meru District. He heard his dog bark incessantly. He took his torch and a walking stick and went out to check why it was doing so. At some distance towards the main road he shone the torch and was able to spot five or so people, one of them he thought was the appellant, a person from his village and w…

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