JUDGMENT OF THE COURT
The appellant was convicted in the High Court of Kenya at Kericho (Nambuye, J.) of the murder of Maricus Apiyo Kisia on 18th February, 1991 and sentenced to death.
The facts relied upon by the prosecution were that at about 5.00a. m. on the fateful day the Boma of Raphael Magawi (P. W. 3) at Onyuongo, Kisumu District, was raided by cattle thieves and 14 head of cattle were stolen. An alarm was raised and about 30 villagers assembled within a very short time. Among the villagers was the deceased. They tracked the cattle towards Kaplelartet village of Kericho district where they located the stolen cattle. The person who was herding them fled and disappeared into the nearly forest on seeing the search party. The villagers drove back the cattle towards their Kisumu Village but on the way they were ambushed and attacked by any armed gang of about 100 people carrying pangas, spears, bows and arrows. The villagers ran in different directions and it is now common ground th…