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(2010) JELR 98925 (CA)

Court of Appeal  •  Criminal Appeal 122 of 2009  •  4 Nov 2010  •  Kenya

Philip Kiptoo Tunoi, John walter Onyango Otieno, Erastus Mwaniki Githinji



MOSES KUBAI M’ITHAI, the appellant, was convicted on 6th May 2006 after trial by the Senior Principal Magistrate at Nanyuki of robbery with violence contrary to section 296 (2) of the Penal Code and sentenced to death. He unsuccessfully appealed to the High Court of Kenya at Nyeri (Kasango and Makhandia JJ) which dismissed his appeal on 7th May 2009. Hence this is a second appeal. On 2nd November 2010 when the appeal was called to hearing, Mr. Kaigai the learned Principal State Counsel, informed the Court that he did not seek to support the conviction and the sentence. The prosecution case as presented before the trial court was as follows. On 20th November 2006 at about 10.00 a.m. the complainant Kimani Nduati (PW1) was alone walking towards Nanyuki town from Sportsman Arms Hotel when he spotted two men ahead of him near the gate of the hotel. One of them was seated while the other one was standing. As he neared them, the one standing stopped him and enquired fro…

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