The Daily Nation

KENYA: Death row convicts set free

2 men sentenced to hang for violent robbery were yesterday freed by the High Court.

Nyeri High Court judges Michael Khamoni and Hannah Okwengu granted an appeal by Dickson Mwangi Wang'ondu and Paul Wakanywa Mwai against a death sentence for violently robbing a petrol station.

It was song and dance outside the court as the 2 men, convicted for robbing Mr Charles Mwangi Muthui of Sh6,000 while armed with a gun, were freed for lack of evidence. The offence was alleged to have been committed on March 24, 2001.

The judges ruled that Wang'ondu and Wakanywa were wrongly convicted since they were not properly identified as having been involved in the robbery.

Relatives and friends who had jammed the courtroom shed tears of joys when they were informed by a court clerk that their kin had been freed.

The judges noted that the trial magistrate depended on the evidence of a single identifying witness.

"It is a trite law that where a conviction is based on identification by a single witness at night, the trial court must warn itself of the danger of convicting on the uncorroborated evidence which must also be watertight," they said.

Last Friday, the 2 judges differed over a ruling on whether to order a retrial in another robbery case.

They delivered 2 contradicting judgments in an appeal by John Kariuki Kamau and Paul Mwangi Maina who were sentenced to hang.

While Mr Justice Khamoni ordered the 2 set free, Lady Justice Okwengu ordered them tried afresh.

They had appealed against a death sentence by Nyeri principal magistrate Margaret Gitonga for robbing Mr Lawrence Matu Waithera of Sh7,500 at Kiawara slums on July 27, last year.

The judges had, however, agreed that the Attorney-General had flouted the law by allowing unqualified prosecutors to conduct the case.

Mr Justice Khamoni had argued that by allowing a retrial, "the AG would be encouraged to continue using the unqualified prosecutors with the knowledge that when original trials are nullified, retrials would be ordered."

Lady Justice Okwengu argued that "it is unlikely the AG would be allowed by the court to continue to use unqualified prosecutors or be encouraged to continue with such prosecutions merely because retrials were ordered."