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Duncan Mwema v. Republic

(2016) JELR 102627 (CA)

Court of Appeal  •  Criminal Appeal 222 of 2010  •  30 Sep 2016  •  Kenya

Milton Stephen Asike Makhandia, William Ouko, Kathurima M'inoti



The appellant, Duncan Mwema, was charged jointly with Bilan Aginga Nyataya (the deceased) before the Chief Magistrate’s Court at Mombasa, with the offence of robbery with violence contrary to section 296(2) of the Penal Code. It was alleged that on 31st August 2004 at Mwandoni area in Mombasa, jointly with others not before the court and while armed with pangas, they robbed David Muturia Mutuma of a mobile phone, a wallet, an identity card and Kshs 10,250/- and immediately before or immediately after the time of the robbery, used actual violence on him.

On 26th January 2006, the Senior Resident Magistrate, after being satisfied that both the appellant and the deceased were positively identified while committing the offence, convicted and sentenced them to death. Azangalala, J. (as he then was) and Odero, J. dismissed their first appeal in the High Court on 27th May 2010, precipitating this appeal by the appellant alone because his co accused, the deceased, died dur…

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