JUDGMENT OF THE COURT
When he rose to present his response to this second appeal, Mr. Wamotsa, Senior Prosecutions Counsel conceded the appeal on the ground that the prosecution had not proved the offence of attempted robbery with violence against the appellant. Accordingly, he stated, the respondent did not support the appellant’s conviction and the sentence of death confirmed by the High Court. It is to be noted too that during the hearing of the first appeal in the High Court (Odero and Nzioka, JJ) where he was challenging his conviction and sentence to death by the Chief Magistrate’s Court, Mombasa for the offence of robbery with violence, the respondent had similarly conceded the appeal but contended that the evidence disclosed “the lesser offence of attempted robbery with violence”. The High Court agreed and substituted the conviction for robbery with violence with conviction for attempted robbery with violence and upheld the sentence of death imposed upon the appellant by the tr…