Benson Ochien’g Oloo & 1 other v Republic

The court applied the Sawe v Republic principles: inculpatory facts must be incompatible with innocence and admit no other reasonable hypothesis. No witness identified the 1st appellant, but the recovered bloodstained items, the stick broken off from the scene stick, the freshly washed clothes and proximity to the scene were strands so interwoven that guilt pointed unerringly at him, and he had no plausible explanation for the items.

Nothing linking the 2nd appellant to the incident was found in his own house; he was found in the 1st appellant's house, which raised great suspicion of common purpose, but suspicion cannot sustain a conviction. The bloodstained bedsheets allegedly recovered from his house were never produced as exhibits nor supported by a government chemist report, leaving a fatal gap in the chain of circumstantial evidence.

Relying on Muruatetu 2, the court held that a challenge to the constitutional validity of the mandatory death penalty for other capital offences such as robbery with violence must be properly filed, presented and fully argued before the High Court and escalated to the Court of Appeal. No such properly escalated petition has yet been considered, so the mandatory death sentence remains lawful. The courts below, however, erred in not considering sentencing discretion.

Adopting Dima Denge Dima & Others v Republic, the court noted the elements - being armed with a dangerous weapon, being in company of one or more persons, or using violence at or immediately after the robbery - are not read conjunctively. Here a violent attack by more than one person with crude weapons resulting in death and theft of a motorcycle and phone demonstrated the ingredients were met.