JUDGMENT OF THE COURT
1. This is a second appeal from the judgment of the High court in Nairobi in HC CR. Appeal No. 131 of 2010. Consequently, this Court is enjoined by dint of the provisions of Section 361 of the Criminal Procedure Code to consider only matters of law. In so doing, the Court will not interfere with concurrent findings of fact arrived at by the courts below unless it is shown demonstrably, that the same were based on no evidence (See Karingo v. Republic [1982] KLR 219 and also Okeno v. Republic [1972] EA 32). The test to be applied is whether the two courts below considered matters of fact that should not have been considered or failed to consider matters that they should have considered, or that looking at the evidence, they were plainly wrong.
2. In order to contextualize this judgment, we will give a glimpse of the background material that informed the two courts below. On a rainy night during the wee hours of 7th February, 2009, at a residential area in Kikuyu town…