Mr Edward Jawuo and Mr Davis Mumelo were at the time employees of Keetons Bakery Oswal in Ruiru. Jawuo was a salesman and Mumelo a driver.

Both stayed in Ruiru.

On November 24, 1999, they went to Ruiru Ndakaine area to sell bread. At Gatukuyu, they stopped to collect crates they had left earlier.

As Jawuo was alighting, they were accosted by three people, allegedly armed with pistols.

The attackers, (two of them appellants in this judgement) allegedly forced them into a Mitsubishi canter.

The second appellant (Kamiti) took control of the vehicle while Jawuo and Mumelo screamed and were allegedly threatened with guns and squeezed in the car. The time was 2.30pm.

They claimed they were continuously beaten and abandoned in a coffee plantation where the appellants put them in the rear cabin of the vehicle, locked it and escaped. They took with them Jawuo's umbrella and cap and Mumelo's jacket and wristwatch.

Jawuo claimed he gave the first appellant (Muthoko) Sh280,000 after the threat.

Robbers pursued

Workers in a nearby farm witnessed everything and rescued them. Others pursued the robbers and arrested Muthoko.

Police in Thika later arrested Kamiti, while the third robber escaped.

Muthoko and Kamiti were later to be charged with two counts of robbery with violence.

They pleaded not guilty.

When put to their defence, Muthoko claimed he was at the time a grocer and had just alighted from a matatu when a mob attacked him.

Kamiti, who said he was a painter, claimed he was attacked while strolling in a neighbourhood where he was a stranger.

Trial magistrate, Ms Betty Rashid, after hearing the case found both appellants guilty, convicted and sentenced them to death.

The appellants were dissatisfied and appealed to the High Court. But the appeal was dismissed.

The two-judge bench of the High Court said Muthoko's possession of a jacket, cap and umbrella, which the complainants positively identified as theirs, coupled with his failure to explain how he got them, was sufficient to sustain "a conviction against him for the charge, applying the doctrine of recent possession".

Justices Jessie Lesiit and Prof Onesmus Mutungi also said they were satisfied that the complainants had ample opportunity to see and identify their assailants.

The judges found that Kamiti did not work at the farm where he was arrested.

The farm was a private property far from the main road, where Kamiti had claimed he strolled as he waited for a matatu.

Muthoko and Kamiti were still not satisfied with the superior court's decision and a second appeal was premised on seven grounds filed on December 18, last year.

At the hearing of the appeal, Mr Oundu for the appellants argued that the judgement pronounced by the trial magistrate was a nullity since it flouted the provisions of Section 169 of the Criminal Procedure Code Act 75 that requires that such decisions must be dated and signed.

He said there was no indication of the language in which the trial was conducted and that the High Court confirmed the conviction and sentence without itself analysing and evaluating the evidence afresh as is required by law.

Mrs Murungi, senior principal State counsel, in opposing the appeals, maintained that the language used, English/Kiswahili, in conducting the case in the subordinate court was spelt out as at the commencement of the proceedings.

She conceded that the judgement delivered by the trial principal magistrate, though signed, was not dated.

In her view, the omission was curable under Section 382 of the Criminal Procedure Act as no prejudice was occasioned.

Murungi conceded that there was lack of fresh analysis and evaluation of evidence by the High Court.

"We are not persuaded that the complaint about language and interpretation has any merits. Much as the appellants were laymen and may not have known their rights until they had counsel in this court, the record shows that the language of the subordinate was clearly spelt out and interpretation provided by the various clerks. We dismiss the complaint," Murungi said.

The Judges, too, were not persuaded by the State's submission that failure to date a judgement could not vitiate the entire proceedings.

They said they had perused the judgement of the principal magistrate and found "it is signed but not dated".

Drawing from the Court's views in Richard Kamisoi and Another vs Republic Criminal Appeal No 254 of 2006, justice Bosire, Otieno and Aganyanya held that the requirement that a judgement be dated and signed by the presiding officer in open court at the time of pronouncing it, was mandatory and was a statutory requirement.

They remarked that an undated judgement was not a judgement "and so defect in it cannot be cured under section 382 of the criminal procedure code because for the defect in a judgement to be so cured, the judgement must itself exist. In a case where it is not dated, it is not a valid judgement".

The judges noted that the appellants had been occasioned enough prejudice, considering that the judgement was delivered more than five months after the close of the defence case.

Judges castigated

The High Court Judges, who heard the first appeal, were also castigated for failing to critically analyse the evidence presented to the trial magistrate.

The net effect of their failure is that it never occurred to them that the jacket, cap and umbrella were not found on Muthoko but on Kamiti.

In other words, the trial magistrate had been fed with contradictory evidence from two prosecution witnesses.

The High Court Judges also appeared not to have noted the variance between the particulars of the charges and evidence.

The charges stated that the robbers threatened to use actual violence upon the complainants while the evidence by one of the complainants- Jawuo- was that he was beaten by one of the robbers. The trial magistrate, too, did not consider this aspect.

Said the judges: "The High Court, being the first appellate court, had the duty to analyse and evaluate the same evidence afresh. Unfortunately, it did not carry out that duty effectively".

The Judges allowed the appeal, quashed the conviction, set aside the sentences of death imposed and set free the appellants.