SIMON KIHARA WAINAINA V. REPUBLIC

JUDGMENT OF THE COURT

SIMON KIHARA WAINAINA, the appellant herein, was on 7^th February, 2001 convicted by the Senior Principal Magistrate at Nyahururu of attempted robbery contrary to section 297(2) of the Penal Code and sentenced to death. His first appeal to the High Court of Kenya at Nakuru was dismissed on 27^th January, 2005 by Musinga and Kimaru JJ. This is his second and final appeal.

The concurrent findings of the two lower courts were as follows. On the night of the 16^th and 17^th of August 1998 at about 10.00am, Samuel Maina Mwangi (PW1), (hereinafter referred to as the complainant, (PW1) was asleep in his house near Gathanji Trading Centre. He heard someone knocking at the front door. He woke up, picked his torch and panga and went out of the house using the back-door. No sooner had he stepped outside, than he was hit on his forehead by an object. He screamed and ran towards the front of the house. He met with three robbers who confronted him. He cut one of them with a panga. T…