The Court of Appeal has upheld the conviction and sentence of Amos Mugendi Mutegi, who was found guilty of a violent daylight robbery committed more than two decades ago.
His second appeal was dismissed in a judgment delivered by Justices Jessie Lesiit, Hannah Okwengu Ali-Aroni, and Odunga.
The appellate judges found no fault in the concurrent decisions of the trial and High Courts, ruling that the prosecution had proved all elements of robbery with violence.
They further held that the death sentence imposed by the trial court was lawful under Section 296(2) of the Penal Code.
The case stemmed from events on June 8, 2004, at a local trading centre where a spate of robberies occurred in quick succession.
According to witness testimony accepted by the trial court, the incidents began around 3:00 pm when residents heard screams and a sound resembling a tyre burst.
Several witnesses said they saw two men, one armed with a pistol, robbing shopkeepers and passersby.
A witness (PW1) testified that as he approached the scene, he saw Mutegi being chased by members of the public.
The appellant allegedly threw a stone at him but was eventually subdued with assistance.
Another witness (PW2) confirmed he joined the chase and helped apprehend the man later identified as Mutegi.
A shopkeeper (PW3) testified that one of the assailants pointed a gun at him, demanding car keys. When he resisted, the gunman shot him in the left shoulder.
Meanwhile, Mutegi allegedly jumped over the counter, broke into the cash box, and stole approximately Sh3,000 and a mobile phone.
“PW3 searched for the keys but could not find them. He then grabbed a stool and struck the gunman, who went outside. When the assailant returned, PW3 hit him again, prompting the assailant to shoot him in the shoulder,” the judgment states.
The shopkeeper’s wife (PW4) testified that she was also threatened as the attackers demanded vehicle keys, fearing for her husband’s life.
Outside, other victims were reportedly robbed of money, phones, and documents while seated in their car.
Witnesses said one of the assailants searched the vehicle as the other held the victims at gunpoint. The attackers fled when bystanders intervened.
Mutegi was captured by the crowd, beaten, and found unconscious at the scene by police.
At trial, eight prosecution witnesses testified.
The court convicted Mutegi on four counts arising from the incident. He was sentenced to death on two counts of robbery with violence and handed a seven-year sentence for attempted robbery.
In a ruling dated July 1, 2005, the trial court said the offences were committed in broad daylight and that Mutegi had been positively identified by victims and arresting witnesses.
His first appeal to the High Court upheld the conviction but adjusted the sentences. The death sentence was maintained on one count, while sentences for the other counts were held in abeyance.
The seven-year sentence was declared academic due to time already served.
The High Court also dismissed claims that Mutegi’s rights were violated during trial due to illness, lack of legal representation, and alleged procedural flaws.
It found that he had participated fully in his defence and cross-examined witnesses.
Mutegi told the High Court his death sentence had been commuted to life imprisonment through a presidential amnesty. However, the court noted no official documentation was provided to confirm the commutation.
“On March 9, 2017, the appellant informed the High Court that his death sentence had been commuted to life imprisonment through a Presidential Amnesty. No evidence was tendered to support this claim. The court held that if true, the commutation would stand,” the judgment read.
In his second appeal, Mutegi argued that he was a minor at the time of the offence, that identification was flawed because no identification parade was conducted, and that the prosecution failed to produce key evidence such as a ballistic report or spent cartridge.
The appellate court rejected these arguments, noting that the age issue was being raised for the first time and that no proof was provided to support the claim.
“We note that the appellant never raised the issue of his age at the trial court or the High Court. This issue is being raised before us for the first time,” the judges observed.
The court held that all elements of robbery with violence were established, including the presence of an armed accomplice, use of actual violence, and theft from multiple victims.
“This was not dock identification. The appellant was pursued, apprehended, and identified at the scene,” the judges noted.
The Court of Appeal concluded that the conviction was safe and fully supported by evidence and saw no reason to interfere with the sentence.
The appeal was dismissed in its entirety.
