JUDGMENT OF THE COURT
The two appellants, Saidi Nguto Masila (1st appellant) and Ali Omari Abdulrahman (2nd appellant) were originally jointly charged with two counts of robbery with violence contrary to section 296(2) of the Penal Code. They pleaded not guilty to both counts, were tried by the learned Senior Resident Magistrate at Kwale (Ms. L.N. Mbatia) convicted and consequently sentenced to death as mandatorily provided by the law. They appealed to the superior court (Mwera and Maraga JJ) which allowed their appeal on the second count but dismissed their appeal in respect of the first count. They now come to this Court by way of second appeal and that being so, only matters of law fall for consideration pursuant to section 361 (1) of the Criminal Procedure Code ( Cap. 75 Laws of Kenya).
The particulars of the offence in respect of the first count, which is the subject of this judgment, were as follows:-
“1 SAIDI GOSO MACHILA
2 ALI OMARI ABDULURAMAN: On the day of 4th August, 2002, at …