SWAHIBU SIMBAUNI SIMIYU & GEORGE WANYAMA WANDERA V. REPUBLIC

JUDGMENT OF THE COURT

In this appeal, both Mr. Karanja, learned counsel for both appellants, and Mr. Musau, the Senior Principal State Counsel representing the respondent Republic, are agreed that the appeals ought to be allowed. We respectfully agree with them.

The two appellants, Swahibu Simbauni Simiyu and George Wanyama Wandera were tried on various charges in the court of the Senior Principal Magistrate (Indeche, Esq.) at Bungoma. The appellants were acquitted on all counts, save for the third count which was one of attempted robbery with violence contrary to section 297(2) of the Penal Code. That charge, upon conviction, carries a mandatory death penalty and as the appellants were convicted on it, each of them was sentenced to death. The appellants appealed to the High Court, but the appeals to that court were dismissed by its judgment dated 21^st May, 2004. That being so, the only issues that the Court can consider are issues of law and the first ground of law raised by Mr. Karanj…