JUDGMENT OF THE COURT
:In an information dated 20th February 2004, the appellant, Francis Gichovi Muthoni, was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were:
“........ on the 22nd day of November, 2003, at about 7.30 p.m. at Kihongwe Trading Centre, Mpeketoni Location in Lamu District within Coast Province, murdered Simon Mwiruri Kamau.”
The appellant pleaded not guilty to the charge and the trial proceeded with the aid of assessors before the superior court. After a full hearing by the superior court (Ouko J.) and after summing up to the assessors, each assessor gave an opinion that the appellant was guilty of the offence. The learned Judge of the superior court in a well considered judgment found the appellant guilty of murder as charged, convicted him and sentenced him to death. In finding him guilty and convicting him, the learned Judge addressed himself thus:
“Given the close proximity of the…