JUDGMENT OF THE COURT
JOSEPH OKILA, the 1st appellant and SHADRACK TETE OGINGA, the 2nd appellant, whose appeal has abated under Rule 68 (1) (a) of the Rules of this Court on account of his death, were both convicted on two counts of robbery with violence contrary to section 296 (2) of the Penal Code and sentenced to death. Their first appeals to the High Court of Kenya at Kisumu (Mwera and Warsame, JJ) were dismissed on 21st September, 2006 and hence this second appeal.
As the appeal of the 2nd appellant has abated, this judgment will of necessity concern itself solely with the 1st appellant.
The case for the prosecution rested on the following facts. Margaret Opwole (PW1) and her husband were asleep on the night of 7th and 8th February, 2002, in their house at Emuli, Emalaha sub-location of Vihiga District when she heard a bang on the window. A group of people were asking for the house of Odanga saying that they were police officers from Nairobi looking for his son who had allegedly st…