JUDGEMENT OF THE COURT
This is a second appeal brought by the Appellant Dominic Musila Etumbo against his conviction of the offence of attempted robbery with violence contrary to section 297 (2) of the Penal Code for which he was sentenced to death that being the mandatory sentence.
The particulars of the offence set out in the charge sheet were as follows: -
“1. Dominic Musila Etumbo (2) Peter Musyoki Mwendwa (3) Philip Ndungu Mothancha on the night of 29th and 30th day of December, 2002 at Baobab Farm in Bamburi in Mombasa District within Coast Province jointly with others not before the court while armed with offensive weapons namely Rungus, Pangas, Axes, Bows, Arrows and stones attempted to rob Reuben Mzenge of cash Kshs.549,475/= and at or immediately before or immediately after the time of such attempted robbery threatened to use actual violence to the said Reuben Mzenge.”
The evidence of P.W.1 Reuben Mzenge described how the events implicating the appellant unfolded at the Bamburi …