JUDGMENT OF THE COURT
On the 9th December, 2004, KENGA CHEA THOYA was arraigned before the High Court of Kenya at Malindi on a charge of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence read as follows:-
“KENGA CHEA THOYA: On the 17th day of October, 2004 at Gede village, Gede sublocation, Mtangani location, Kilifi District of the Coast Province murdered KAUCHI KATANA KITOO.”
When the charge was read and explained to the appellant, he pleaded “Not Guilty”. He was accordingly remanded in custody to await his trial which eventually commenced on 9th March, 2005 before Ouko Ag. J. (as he then was) sitting with three assessors. The prosecution called six witnesses.
The evidence of Saumu Karisa Katana (PW 1) was that on the material day (17th October, 2004) at about 9.00 a.m. while walking to church with the deceased (Kauchi Katana Kitoo) they were confronted by the appellant, who emerged from a thicket. The appellant ordered the deceased…