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Simon Githaka Malombe v. Republic

(2015) JELR 95082 (CA)

Court of Appeal  •  Criminal Appeal 314 of 2010  •  15 Jul 2015  •  Kenya

Philip Nyamu Waki, Roselyn Naliaka Nambuye, Patrick Omwenga Kiage



Simon Githaka Malombe (the Appellant) appeals to this Court against the dismissal by the High Court (Khaminwa J, as she then was and Makhandia J – as he then was) of his first appeal against a conviction and sentence of death imposed on him by the Kerugoya Senior Resident Magistrate (J.N. Onyiego) on a charge of robbery with violence contrary to Section 296(2) of Penal Code. He was acquitted on three other counts of the same offence.

The particulars of the charge that earned the appellant the conviction and sentence were set out in count II of the charge sheet were that;

“On the 12th day of March 2005 at Muchangara village in Kirinyaga District within Central Province, jointly with others not before Court, being armed with dangerous weapon (sic) namely axes, pangas and rungus, robbed JAMES KINYUA MUTHIE cash 2600 and at or immediately before or immediately after the time of such robbery wounded the said JAMES KINYUA MUTHIE.”

The two courts below found the prosecution…

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