JUDGMENT OF THE COURT
The appellant was a person well known to Paul Njoroge Kimotho, (PW1). PW1 operated motor cycle business commonly referred to as “boda boda”. On 29th July, 2009 at about 9.30p.m.whilst at Kaloleni stage waiting for passengers, he was approached by the appellant who was in the company of Hamisi Kenga (Hamisi) and requested to be ferried to Chalani Trading Centre at an agreed fare of Kshs.200/- to be paid by Hamisi. Upon reaching the centre, the passengers requested him to take them a little further. He resisted the request claiming that he had run out of fuel. Hamisi then asked PW1 whether he had change for Kshs.1000/-. While standing astride the motor cycle counting the money he had for purposes of the change, he was suddenly struck on the back of the head with a hammer by Hamisi. By then the appellant had moved about ten metres away and watched with glee as the events unfolded not bothering to intervene at all. Sensing that the appellant and Hamisi meant no good, …