JUDGMENT OF THE COURT
1. In April 2009, the appellant, Mathew Mumina Mutinda, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 17th April 2009 about 3.00 p.m., at Ulawini Village of the then Taveta District of the former Coast Province he murdered Stephen Nthiwa. He was tried before the High Court at Mombasa and convicted in a judgement delivered on the 26th of October 2012. He was sentenced to imprisonment for a term of 40 years.
2. He has appealed against both of the conviction and the sentence. In his grounds of appeal, he contends that his wife, PW1, was called as a prosecution witness contrary to Section 127 of the Evidence Act; that the charge of murder was not proved; and that the Judge did not consider or properly consider the evidence of provocation.
3. The prosecution case, in brief, was that on 17th April 2009 at about 12.00 noon, the appellant encountered his wife, PW1, conve…