A man sentenced to death for robbery with violence has been dealt a blow after the Court of Appeal on Friday ruled that his petition has no merit.
Benson Musyoka Mutisya was convicted and sentenced to death by a trial court on September 7, 2010.
On the night of January 13 - 14, 2006, Issack Kimeu Syengo was asleep when he was awoken by a sound of an object falling outside his house.
It was around 1am when he heard someone calling his name and loudly demanding that he opens the door
He also heard the movement of people outside his bedroom window. The group all of a sudden broke the window and flashed a torchlight on him.
Kimeu screamed for help as his assailants-to-be proceeded to break the door and entered the house.
They were three people, among them, one person whom the victim identified as Mutisya Ngulu. He had a panga.
He said they attacked him, cut his left hand and his head.
They then led him to the bedroom and demanded money, to which he pointed to a shirt where he had kept Sh1,100 even as they continued beating him.
The assailants proceeded to the bedroom where Kimeu's daughter was asleep and pulled her outside. They continued searching both the father and daughter for money.
After establishing they had no cash, the gang cut Kimeu's thighs and hit his head with the flat side of a panga until he fell unconscious.
When he regained his conscious, he discovered that he was at the Kitui Hospital.
He was given the names of the other attackers by his daughter and another witness.
Testifying, Kimeu's daughter told the court that she was able to identify their assailants on the night of the attack.
She also added that one of the assailants hit her with a machete on her forehead and she could see the others beating her father and demanding money.
She said of the total of four attackers, she identified two of them as Kyalo and Mutisya - the appellant.
She also saw them take away maize, cooking fat and Sh1,500.
They were thereafter locked in the house.
A neighbour said there was indeed a commotion at Kimeu's home at 1am on the day.
He said he saw the assailants while walking home from his shamba where he had gone to check on his charcoal kiln.
He said it was easy to see them- Kyalo, Bernard Mulwa, MusyokaMutisya, the appellant and Mutisya Njeru- as there was a bright shiny moon.
The witness went out and called other neighbours, who rushed to Kimeu's home.
They told the court they found the house locked from the outside and upon opening the door, they saw Kimeu and his daughter.
Kimeu was bleeding from the head and his hand and was taken to Kitui Hospital.
Another witness said he came from the same village as the appellant whom had known for 15 years.
In his defence, Musyoka denied the allegations, saying that on the night in question, he was at home and had slept in his house with the rest of his family members.
The trial magistrate found that the prosecution had proved its case to the required standards.
Aggrieved, Musyoka appealed to the High Court of Machakos but the plea was dismissed, prompting a second appeal.
He argued that the judges failed to subject the entire evidence submitted at the trial court to fresh and independent evaluation.
The appellant's counsel further said the conviction by the High Court and trial court was based on Musyoka's visual identification although none of the witnesses named him as an assailant.
"... they listed their assailants as Mutisya Ngulu, Musyoka (also known as Bernard), Kyalo, Bernard Mulwa, Musyoka Mutisya. Counsel submitted that the identification of the appellant by the witnesses was therefore not free from error which rendered the conviction unsafe," the court said.
The lawyer also argued that the mandatory death sentence as prescribed under section 296 (2) of the Penal Code was unconstitutional.
The prosecution however opposed the appeal submitting that it had proved the case to the required standards.
"... the trial court arrived at a proper decision which was upheld by the first appellate court after it properly analysed the evidence," it said.
In regards to his identification, the state said the witnesses knew Musyoka, noting that the robbery took about one hour under bright moonlight.
It argued that as a consequence, the appellant was properly identified.
"With respect to the sentence, counsel submitted that the death sentence is still available in cases of robbery with violence and that the appellant was properly sentenced in the circumstances," the court said.
After considering the case, the Appellate Court came to the same conclusion as the trial court and the High Court that the case was proven.
"...since the appellant did not raise the issue of the constitutionality of the mandatory death sentence in respect of robbery with violence under section 296 (2) of the Penal Code in his appeal to the High Court, we are precluded from addressing that issue in this appeal. Consequently, the appeal on sentence also has no merit and is dismissed," the court said.
"In sum, the appeal on both conviction and sentence is not merited and is dismissed."
