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JudgmentCOLLINS OMONDI OMUOYO & ANTHONY MUTUA JOHN Alias MUSEMBI VS REPUBLIC22 min read

COLLINS OMONDI OMUOYO & ANTHONY MUTUA JOHN Alias MUSEMBI VS REPUBLIC

High Court at Mombasa High Court · · Wendy Micheni

sREPUBIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL APPEAL NO. E052 OF 2022

(CONSOLIDATED WITH CRIMINAL APPEAL NO. E079 OF 2022 AND CRIMINAL APPEAL NO. E219 OF 2023)

KING JUSPHER ODHIAMBO alias OCHUKA

COLLINS OMONDI OMUOYO

ANTHONY MUTUA…………..….……………………………APPELLANTS

VERSUS

REPUBLIC…………….…...………………………….….….PROSECUTOR 

(From Original Conviction and Sentence of Hon. Florence W. MACHARIA

JUDGMENT

Introduction

  1. The Appellants were charged before the Chief Magistrate Court in Shanzu with the offences of:-

Count I: Robbery with violence contrary to section 296(2) of the penal code. Particulars of the same being the Appellants on the 16th day of September 2017 at Senti Kumi area in Likoni Sub-County within Mombasa County, jointly with others not before court, while armed with offensive weapons namely knives robbed Patrick Kaimenyi Wanjohi of his mobile phone make SONY X-PERIA IMEI NO. 355613071290577 valued at Kshs. 5000/-, and at the time of such robbery killed the said PATRICK KAIMENYI WANJOHI.

Alternative Count: Handling stolen goods contrary to section 322(2) of the Penal Code. The Particulars of the offence being that King Juspher Odhiambo alias Ochuka (the 1st Appellant, on the 9th day of February 2018 at Leisure area in Kisauni Sub-County within Mombasa County, otherwise than in the course of stealing dishonestly undertook disposal of mobile phone make SONY X-PERIA IMEI NO. 355613071290577 the property of PATRICK KAIMENYI WANJOHI, for the benefit of ABISAI LIMANYE NAMEMA knowing or having reason it to be stolen property.

Count II: Robbery with violence contrary to section 296(2) of the Penal Code. Particulars of the offence being that the Appellants on the 16th day of September 2017at Senti Kumi area in Likoni Sub-County within Mombasa County, jointly with others not before court, while armed with offensive weapons namely knives robbed NANIS KAYUME MURIKI of her mobile phone make INFINIX X552, two trousers, three dresses, two sleeveless tops, a pair of rubber shoes and cash Kshs. 2000/= all valued at Kshs. 27,600/= and immediately before the time of such robbery wounded the said NANIS KAYUME MURIKI.

Count III: Gang rape contrary to section 10 of the Sexual Offences Act No.3 of 2006. Particulars of Offence being that on the 16th day of September 2017 at Senti Kumi area in Likoni Sub-County within Mombasa County, in association with another before court and others not before court, intentionally and unlawfully caused his penis to penetrate the vagina of NANIS KAYUME MURIKI without her consent.

Alternative charge to Count III: Committing an indecent act with an adult contrary to Section 11 of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 16th day of September 2017 at Senti Kumi area in Likoni Sub-County within Mombasa County, in association with another before court and others not before court, intentionally touched the vagina of NANIS KAYUME MURIKI with his penis against her will.

Count IV: Gang rape contrary to section 10 of the Sexual Offences Act No. 3 of 2006. The Particulars of the offence were that King Juspher Odhiambo alias Ochuka (the 1st Appellant): on the 16th day of September 2017at Senti Kumi area in Likoni Sub-County within Mombasa County, in association with another before court and others not before court, intentionally and unlawfully caused his penis to penetrate the vagina of NANIS KAYUME MURIKI without her consent.

Alternative of Count IV: Committing an indecent act with an adult contrary to Section 11 of the Sexual Offences Act No. 3 of 2006. The Particulars of offence were that King Juspher Odhiambo alas Ochuka: on the 16th day of September 2017 at Senti Kumi area in Likoni Sub-County within Mombasa County, in association with another before court and others not before court, intentionally touched the anus of NANIS KAYUME MURIKI without her consent.

  1. They denied the charges and the trial court put down the case for hearing. The prosecution called 21 witnesses and at the close of the prosecution’s case, the trial court found the Appellants had case to answer; put them to their defence, convicted and sentenced them to death.
  2. Being dissatisfied with the said judgment the  appellants lodged the present appeal relying on the following grounds:
  3. THAT the learned magistrate erred in law and fact by making a finding that the Prosecution had proved their case beyond reasonable doubt and proceeded to convict the Appellant.
  4. THAT the learned Magistrate erred in law and fact, by making a finding that the Appellant was positively identified by the complainant despite evidence showing that the Appellant was not at the scene of crime.
  5. THAT the learned Magistrate erred in law and fact, by making a finding that the Appellant was guilty of the charges facing him despite evidence pointing to the innocence of the Appellant.
  6. THAT the learned Magistrate erred in law and fact, by failing to analyze the telephone data from Safaricom Ltd which showed, that the Appellant was innocent of the charges facing him.
  7. THAT the learned Magistrate erred in law and fact, by failing to consider the evidence of the Appellant and choosing to rely on the Prosecution's evidence and thereby arriving at a wrong judgment.
  8. THAT the learned Magistrate erred in law and fact by Sentencing the Appellant to life imprisonment which was manifestly excessive in the circumstance.
  9. For the reasons advanced in his Petition of Appeal, the Appellant prayed for his Appeal to be allowed and he be set free forthwith.
  10. The 2nd Appellant filed his submissions, which  have been considered in arriving at the determination.

Submissions

  1. The 2nd Appellant submitted on Ground 1, 2, 3, 4 and 5 drawing the attention of the court to the fact that the Appellant was arrested on the 28th August, 2018 after the commission of the Offence. According to the Appellant, the sole witness to the charges facing the Appellant Collins Omondi Omwoyo was PW1 NANIS KAYUME MURIUKI , who narrated the events of 16th September, 2017 in which she stated that while walking home together with the deceased Patrick Kaimenyi at around 9:00 pm at Senti Kumi area in Likoni, they were attached by six men who emerged from the bushes and that four of the six men attached the deceased and 2 (two) of the six men pounced on her and dragged her to the bushes. It was the evidence of PW 1 that visibility was good as there were street lights.
  2. PW1 further stated that the two men demanded her Mobile phone and further gang raped her and that the 1st Accused i.e. King Juspher Odhiambo alias Ochuka raped her through the anus and the Appellant raped her through the vagina. Further, it was the evidence of PW1, that after 3(days) she was arrested and taken to Likoni Police station and she took the Police Officer to the scene of crime.
  3. It was the submission of the 2nd Appellant on line 14 at page 14 of the record of Appeal, the witness PW1 stated in her evidence in chief that on the date of the occurrence of the offence i.e.  on 16th September, 2017 the visibility was good as there were street lights which enabled her to positively identify the Appellant Collins Omondi Omwoyo.
  4. The 2nd Appellant drew the attention to the evidence of PW11 Walter Kurtis Owuor who dubbed as both the village elder and involved in community policing at Senti Kumi area of Likoni. Page 52 of the record of Appeal at line 9 onwards where the witness states as follows:-

“I went to the scene and saw a man lying on his back and his head facing the ocean. I called the Police and they came. They had torches as the area was dark when they light their torches I saw stab injuries.

HE submitted that there is doubt in regard to the evidence of PW1 Nanis Kayume Muriuki that the area where they were attached was well light and that there were street lights.”

  1. The 2nd Appellant averred that the sketch map of the area by No. 236109 I.P David Nyaamba and produced as exhibits 7(a) and 7(b). The sketch map of the area does not show any street lights. HE urged The Court to make a finding that the scene of the crime when the complainant was robbed and raped was not well light and thus PW1 could not have had a good look of the Appellant to identify him almost a year later.
  2. According to the 2nd Appellant in his submissions, PW 5 Kenneth Mathenge  stated in his evidence that PW1 Nanis Kayume Muriuki appeared drunk on the material day of the offence. The witness stated that the lady was appearing drunk as she was insulting him for delaying her order. The Appellant further submitted that given the state of mind of the complainant PW1 and the evidence of PW11 Walter Kurtis Owuor the witness PW1 was not in a position to positively identify the Appellant Collins Omondi Omwoyo as one of the persons who robbed and rapped her on the 16th September, 2017at 9:00 pm at Senti Kumi area in Likoni.
  3. HE also argued that From the evidence on record PW1 Nanis Kayume Muriuki, visited Likoni Police station on the 17th September,2017 and never reported to the Police that she was raped and robbed on the 16th September, 2017 and further the said PW1 was arrested after 3 days by PW8 No.236109 I.P David Nyaamba and its when PW1 led them to the scene of crime and further to the House of Winfred Kagendo’s house where the clothes which she wore on the 16th September, 2017 were recovered namely her inner wear which was taken for analysis. He also made reference to page 45 of the record of appeal and line 13 the 2nd Appellant and said that the inner wear that PW1 was wearing which was produced as exhibit No.5, which was taken for analysis with reference to line 20 at page 45 and the forwarding exhibits memo-form-exhibit No.6.He submitted that, the exhibit, a stained inner wear , was under the ESCORT OF NO. 236109 IP DAVID NYARAMBA. That according to the exhibit memo form , the stained innerwear was recovered the following day i.e on 17th September, 2017 in the bush adjacent to the primary crime scene and the said exhibit was recovered by the witness I.P David Nyaramba in the adjacent bush.
  4. It was the humble submission of the 2nd Appellant that any DNA recovered from the said innerwear which had been with the Government Analysist as from 28th September, 2017 and would have definitely linked him with the offence facing him both of robbery with violence and also gang rape as his DNA would have without a shadow of doubt placed him at the crime scene.
  5. HE argued that it was now in doubt where the stained inner wear was recovered that I; whether in the bush at the crime scene  or Winfred Kagendo’s house. He argued that the learned magistrate erred in law and fact by ignoring the DNA evidence which did not match that of the Appellant Collins Omondi Omwoyo’s DNA taken after his arrest.
  6. The 2nd Appellant further urged the Court to make a finding that this crucial piece of evidence is in favour of the Appellant that he was not at Senti Kumi area in the night of 16th September, 2017 as PW1 did not deny that the inner wear recovered by I.P David Nyaamba did not belong to her.
  7. He further submitted that The identification parade by Inspector Mathew Koech was not fair and in line with the strict guidance and regulations of conducting Identification parades.
  8. The 2nd Appellant told the court that his mother was not allowed to attend the identification parade. According to the Appellant this Honourable Court ought to treat the Identification parade conducted on the 1st September, 2018 close to almost 1 year after the offences as worthless and further the finding by the then learned magistrate as a misdirection in making a finding in her judgment that the identification parade was proper and according to the law, as no action was taken by inspector Koech to remedy the complaint of the Appellant that he had nobody at the time of the parade.
  9. According to the 2nd Appellant the call logs of the Appellant which placed him at Mkunazini on 16th September, 2017at 9:18 pm; the 2nd Appellant Collins Omondi Omwoyo was using Mobile Number 0707708546 and his identity number was No. 29559061. According to PW 20 Mohamed Hassan of Force Number 85218 the Appellant Collins Omondi Omwoyo used the Mobile Sony X-peria which was associated with the deceased Patrick Kiamenyi on the 11th November, 2017 almost 2 months after the occurrence of the offence on the 16th September, 2017 and his explanation was that the phone was given to him by the 1st Accused Jusper Odhiambo alias Ochuka. The Mobile Number 0707708546 was not placed at Senti Kumi where the offence took place but at Mkunazi and thus the finding of the Learned Magistrate, that the call logs of mobile Number 0707708546 placed him at Senti Kumi area in Likoni to be a misdirection which led to an erroneous finding.
  10. The 2nd Appellant referred the Court to page 118 of the Record of Appeal and line 18 where the learned magistrate stated that the evidence places the Appellant Collins Omondi Omwoyo at the scene of crime at Senti Kumi Likoni . That the holding of the learned magistrate that the Appellant Collins Omondi Omwoyo was identified at the scene of crime by PW1 as a misdirection as nowhere in the evidence of PW1 did she state that she identified the Appellant at the scene of crime; drawing the Court’s attention to the evidence of PW11 of Walter Kurtis Owuor, that the scene of crime was dark and the Police Officers who responded to his phone call had to use torches to light the area.
  11. The 2nd Appellant submitted that the call logs from Safaricom regarding the Phone Number 0707708546 which number the Appellant was using on the 16th September, 2017 placed him at MTONGWE area and Mkunazini area at around 21:31:33 Hours. Mtogwe and Mkunazini areas were not in Senti Kumi area in Likoni where the offence took place on the 9:00PM as stated by PW1 Nanis Kayume Muriuki who claimed to have been raped and robbed by the 2nd Appellant Collin Omondi Omwoyo. 
  12. They also pointed out that the  conviction  was based on a single Identifying witness i.e. PW1 Nanis Kayume Muriuki. The identification parade was conducted on the 1st September, 2018 almost a year after the commission of the offence on the 16th September, 2019. The learned Magistrate failed to warn herself of the dangers of basing her conviction on the evidence of PW1 which was not safe in the circumstances for the following reasons:-
  13. The conditions for proper identification did not exist as visibility was poor as there was no lighting as stated by PW1.The evidence of PW11 Walter Kurtis Owuor regarding the status of the scene of crime.
  14. The identification parade was conducted almost 1 year after the occurrence of the offence.
  15. The procedures of the identification parade and regulations were not followed as there were no notes of the identification parade produced by the prosecution stating the reasons which enable the witness PW1 to identify the Appellant by either giving a description of the Appellant to the investigating officer so that the description could form part of the record to enable the Honourable Learned Magistrate in her interrogation of the evidence of PW1. In the above submissions they cited the Court of Appeal Case in:-

CRIMINAL APPEAL NO. (357 OF 2012) VICTOR MWENDWA MULINGE – VERSUS – REPUBLIC

That the failure by the trial court to analyze the evidence of a single identifying witness is an error in law and such evidence cannot sustain a conviction.

  1. According to the 2nd Appellant, the Court of Appeal has held that before an identification parade is conducted a witness should be asked to give the description of the person sought to be identified and the advance identification sought to be in writing and the same together with the identification parade forms availed to the trial court so that it can compare the description given of the accused. The 2nd Appellant urged the Court to find his favour and allow the Appeal.
  2. According to the 2nd Appellant no evidence had linked him to the offence as both the DNA evidence and the call logs had not placed him at the scene of crime at Senti Kumi in Likoni and further the Appellant in his defence was able to give an explanation of how he got to use the phone associated with the deceased Patrick Kaimenyi in his defence namely, that its Juspher Odhiambo alias Ochuka the 1st Accused in the Lower Court case who gave him the phone to use on the 2nd November, 2017.
  3. In conclusion the 2nd Appellant submitted that in relation to ground No.6 the Learned Magistrate, sentenced the Appellant to death which was excessive in the circumstance and he humbly prayed that the Honourable Court interferes with the sentence and given the nature of the evidence on record, allow the Appeal and discharge his conviction as it was unsafe to sentenced the Appellant to death based on the evidence on record.

Analysis and Determination

  1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
  2. Having reviewed the trial Record, the grounds of appeal and the parties’ submissions, the two main issues for determination are as follows: -
  3. Whether or not the Prosecution proved its case beyond reasonable doubt;
  4. Whether proper identification parade was done; and
  5. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellants herein by the Trial Court was lawful and/or warranted.

Issue a. Whether or not the Prosecution proved its case beyond reasonable doubt

  1. In the  case of Gabriel Kamau Njoroge – Versus -  Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, Platt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”

  1. Turning to the issue of whether or not the Prosecution demonstrated the elements of the offence of robbery with violence herein, in the case of Oluoch – Versus - Republic [1985]KLR  the Court of Appeal set out the elements robbery with violence as ; being that at the time the offence was committed, the offender was armed with any dangerous and offensive weapon or instrument or the offender was in company with one or more person or persons or at or immediately before or after the time of the robbery the offender wounded, beat, struck or used other personal violence to any person.
  2. Section 295 of the Penal Code stipulates that the elements of robbery with violence are :-
  3. That the offender is armed with any dangerous weapon or offensive weapon or instrument;
  4. That the offender is in the company of one or more persons;
  5. PW 1 confirmed having seen the Appellants. Her evidence was that on their way home with Patrick, the deceased who was a doctor at Tibuani Dispensary they were attacked by the Appellants in the company of three other men. As a result of the attacked both herself and Patrick were wounded and valuables taken. Dr. Mohamed Ali Mohamed (PW 16) produced the P3 and PRC form as exhibits, in respect of PW 1 on behalf of his colleagues Dr. Uba for the P3 form and Said Amin for the PRC form . These confirmed that PW 1 had bodily injuries which she had sustained during the atrocious attacks .
  6. There was no evidence of weapon used but according to the testimony of PW 1, it was a fact that as a result of the stab wounds inflicted during the robbery incidence, the deceased died. This was corroborated by the evidence of PC Kinoti (PW 10) who was present during the post mortem and further corroborated by PW 2 who was initially an accused person turned witness .
  7. PW2 testified  that indeed he was in  possession the phone stolen from the deceased which  was given to him by the 1st Accused. PW 2 also told the court that he was at a garage with the Appellants where they discussed something.
  8. On the first ingredient, even though no weapon was recovered, the attackers were more than one, 6 in number and they not only used violence which resulted into the death of the late Patrick, but also  gangraped PW1 as well.
  9. Both PW1 and the late PATRICK LOST their phones and so the other element  OF theft  was proved.
  10. The APPELANT submitted substantially on the identification.    I find  that PW1 Identified the Appellants  in a proper ID PARADE. Further  apart from the id parade, we had the evidence of PW2 on how he got the phone belonging to the deceased.  This recovery corroborated  the identification.
  11. The Trial Court thus proceeded correctly when it found that all the ingredients of proving the offence of robbery with violence had been satisfied and hence convicted him accordingly. The Appellants’ assertions that the case against them was not proved as thus falls by the wayside based on the doctrine of recent possession.
  12. The essential elements of the doctrine of recent possession were set out by the Court of Appeal in Erick Otieno Arum – Versus - R (2006)eKLR, as follows:- “In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect; secondly, that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession, there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses. In case the evidence as to search and discovery of the stolen property from the suspect is conflicting, then the court can only rely on the adduced evidence after analyzing it and after it accepts that which it considers is the correct and honest version.”
  13. Further the Court is inclined to agree with the trial court the doctrine of recent possession makes this Court also infer guilt as the 3rd Appellant was said to be in possession of a recently stone mobile device and had no explanation on how he got it as he denied ever being in possession of the said mobile device. 
  14. Having re evaluated all the evidence, I am satisfied that the offence of robbery with violence was properly proved.
  15. When we move to the offence of gang rape section 2 and 10 of the Sexual Offences Act and the case of Mark Oiruri Mose – Versus - Republic [2013] eKLR where it was held that so long as there was penetration, whether only on the surface, the ingredient of the offence was demonstrated and that penetration need not be deep inside the girl’s organ. Section 10 of the Sexual Offences Act provides as follows: -

10. Gang Rape

“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.”

  1. The complainant herein said to be above 18 years old at the time of the offence was an adult and the offence in question is therefore rape. The Complainant testified that the 1st and 2nd Appellant told her to remove her clothes or they would harm her and the 1st Accused penetrated her vagina after which the 2nd Accused person penetrated her anus. According to her the men raped her one after the other then robbed her. This penetration was confirmed by Dr. Mohamed Ali Mohamed. The Court has already discussed above that the identification of the Appellants as the assailants was positive.
  2. The complainant was the only eye witness in the matter. The other witness to the crime succumbed to his injuries. The other witnesses were the clinical officer and the investigating officer whose roles in the matter came hours later, on the next day.
  3. The evidence adduced by Dr. Mohammed confirmed that upon examination of the complainant, lacerations around her anus and vagina were observed. She was put on post exposure medication. This Court is thus convinced that there was penetration of the complainant’s genital organs which as per the definition under Section 2 of the Sexual Offences Act extends to the anus for purposes of the Act.
  4. The Court finds that the Prosecution proved the charge of gang rape contrary to Section 10 of the Sexual Offences Act against the Appellant beyond reasonable doubt.
  5. On the issue of the defence by Appellants; I do agree with the trial court mere denials of the knowledge of a crime does not form a defence. In the premises foregoing, Grounds of Appeal number 1 to 5 are found to be unmerited and are hereby dismissed.

Issue b. Whether proper identification parade was done;

  1. In his submissions, the 2nd Appellant has touched on the issue of identification. According to PW 20 during the identification parade all the rules were followed. Further the mere fact that the 2nd Appellant’s mother was not at the identification parade cannot render the parade invalid. The purpose of the identification was achieved which was for the victim to identify the Appellant which PW 20 told the trial court she did. Therefore that assertion does not hold any water.

Issue c. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellants herein by the Trial Court was lawful and/or warranted

  1. The Appellants were found guilty of the offences of robbery with violence and gang rape for the 1st and 2nd Appellant convicted and all sentenced to death. Section 295 of the Penal Code states that:-

“Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.”

  1. Further, Section 296 (1) and (2) of the Penal Code provides as follows:-

1. Any person who commits the felony of robbery is liable to imprisonment for fourteen years.

2. If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

  1. Section 10 of the Sexual Offences Act provides that:-

“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.”

  1. Despite there being emerging jurisprudence to reduce sentences under the Sexual Offences Act as can be seen in the case of Dismas Wafula Kilwake – Versus - Republic [2018] eKLR where the Court of Appeal held that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences, the African Charter on Human and Peoples' Rights on the Rights of Women in Africa provided that any practice that hindered or endangered the normal growth and affected the physical and psychological development of women and girls should be condemned and eliminated. Rape was one of those practices and actions. It must therefore be condemned in the harshest terms.
  2. Rape was a crime that robbed the victim all her dignity and carried lifelong trauma. It was an unforgivable crime because the perpetrator took something valuable to the victim by force and unexpectedly. It was compounded the effects of the offence robbery with violence that left victims shocked and traumatized. It was even more traumatic when the same victim was raped and robbed at the same time.
  3. In view of the atrocity that was meted out on PW 1 and the deceased and in the foregoing, the upshot of this Court’s decision is that the Appellants’ petition of appeals dated 23rd November, 2023, 19th July, 2022 and 23rd August, 2022 respectively in order of the Appellants are not merited and the same be and are hereby dismissed. The Appellants’ conviction and the sentences be and are hereby upheld as they were safe. 
  4. For avoidance of doubt, the Appellants shall serve their death sentences.

IT IS SO ORDERED ACORDINGLY.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….28th…………DAY OF …………November…………….……., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora………Court Assistant;

Ms. Maina……………State Counsel;

APPELANTS and the ADVOCATE MR OKANGA

    COLLINS OMONDI OMUOYO & ANTHONY MUTUA JOHN Alias MUSEMBI VS REPUBLIC COLLINS OMONDI OMUOYO & ANTHONY MUTUA JOHN Alias MUSEMBI VS REPUBLIC