JUDGMENT OF THE COURT
The appellant FRANCIS WANYONYI NGUTUKU was after trial convicted of robbery contrary to Section 296(1) of the Penal Code and sentenced to five years imprisonment together with six strokes of the cane and hard labour by the Senior Resident Magistrate, Kitale, on 26th June, 2002. His first appeal to the High Court of Kenya at Eldoret, Dulu, Ag. J, however, enhanced the conviction by substituting it with one under Section 296(2) of the Penal Code and imposed the sentence of death. This is the appellant’s second appeal.
At about 1.00 a.m. during the night of 6th and 7th January, 2001, the complainant John Otwane (PW.1) and his wife Janet (PW.2) were asleep in their house at Grassland Farm in Trans Nzoia District when a gang of about five armed men forcibly broke the door and entered their house. It viciously attacked the couple and robbed them of property. It is PW.1’s evidence that a hurricane lamp was on and he was able to identify the appellant as a member of the ga…