JUDGMENT OF THE COURT
The Magistrate’s Court at Vihiga convicted the appellants, Samson Lwembuli Mwange and Yassin Chogo Juma, for the offence of robbery with violence contrary to section 296(2) of the Penal Code and sentenced them to death. Their appeal against the conviction and sentence to the High Court was dismissed in a judgment delivered on 28th May 2014.
In this second appeal, confined, as it must, to questions of law by reason of section 361(1) of the Criminal Procedure Code, [See M’Riungu v. R [1983] KLR455], the only question is whether the convictionwas safe based on the evidence of identification presented by the prosecution.
According to Mr. C. W. Kouko, learned counsel for the appellants, the circumstances under which the offence was committed were not conducive for positive identification of the perpetrators; the victims, namely the complainant and his wife were forced to lie down during the robbery and were therefore not in a position to identify their attackers; the lig…