JUDGEMENT OF THE COURT
[1] This is a second appeal by Jesse Mwangi Theuri, the appellant, against the judgment of the High Court at Nairobi (J. Lesiit and Makhandia JJ.), dated 20th September, 2005 in H.C.CR.A No. 303 of 2003. In the said judgment, the appellant's appeal was dismissed and being dissatisfied, he filed the present appeal which by dint of the provisions of Section 361 (1) (a) of the Criminal Procedure Code, only matters of law fall for our determination unless it is demonstrated that the two courts below failed to consider matters they should have considered or looking at the entire case, their decisions on such matters of facts were plainly wrong in which case this Court will consider such omission(s) as matters of law.
[2] Both courts below clearly set out the facts of the matter but in order to put this judgment in perspective we briefly set out the facts that were before the trial court. It was the prosecution's case that on 3rd December, 2002 at around 9.40p.m, the co…