JUDGMENT OF THE COURT
This is yet another case in which a convict challenges the correctness of his identification at night time in a case of robbery with violence contrary to section 296 (2) of the Penal Code. Evans Otieno Ogutu alias Mwalimu, the appellant, was charged, tried, convicted and sentenced to suffer death on two counts of the offence of robbery, contrary to the aforesaid section. His first appeal to the superior court was dismissed and hence the appeal before us. On the evening of 7th February, 2003, Michael Ochieng Opondo (PW3) arrived in a taxi at his residence at Nyalenda Estate, Kisumu , while in the company of his employee, Kennedy Omondi (PW1).
Immediately they were confronted by a group of people, some who, described themselves as policemen, and others as members of a vigilante group. In actual fact they were robbers. They were armed with pangas. PW3 had a torch which he shone on their faces. In his evidence at the trial, PW3 stated that he had new batteries in the …