JUDGMENT OF THE COURT
On 10th March, 2005 the appellants herein, Kitsao Kaingu Kazee (as the 2nd accused) and Juma Karisa Mwabati (as the 1st accused) were arraigned before the High Court of Kenya at Malindi on a charge of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that the two appellants jointly murdered Chengo Mwambire Msaji on 22nd October, 2004 at ADC Kisiwani Farm Village within Malindi District of the Coast Province. Each appellant pleaded not guilty to the charge and their trial commenced on 30th May, 2005 before Ouko J. who sat with three assessors.
The summary of the evidence adduced before the superior court was as follows:
On 22nd October, 2004 at about 11.00 p.m. Dama Kaluwa (PW 2) and her co-wife Kanzi Kaluwa (PW 3) were asleep when they were awakened by some commotion from a nearby palm wine den. Both came out and saw the two appellants and one Kazungu Wa Kazee beating up the deceased person while other rev…