[2017] KEHC 2606 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CRIMINAL APPEAL NO. 17 OF 2017

AHMED ILLE MOHAMED.......................APPELLANT

VERSUS

REPUBLIC.............................................RESPONDENT

(From the conviction and sentence in Mandera SPM Criminal Case No. 339 of 2017 – P. N Areri SRM)

JUDGMENT

1. The appellant was charged in the subordinate court at Mandera with attempted robbery contrary to Section 297 (1) and (2) of the Penal Code. The particulars of the offence were that on the 23rd March, 2017 at 0200hrs at Bulla Hargessa in Mandera District within Mandera County jointly with others not before court and armed with a knife attempted to rob Hassan Daweed Hussein of his motor vehicle Registration No. KBW 160G Toyota Probox valued at Ksh.750, 000/= and immediately before the said attempt, stabbed Hassan Daweed on the left eye with a knife causing him injuries. In the alternative, he was charged with assault with intent to steal contrary to Section 298 of the Penal Code. The particulars of the offence were that on the same day and place with intent to steal a motor vehicle assaulted Hassan Daweed Hussein.

2. The appellant was reported as having pleaded guilty to the charge, which was not described by the Magistrate either as the main count or the alternative count. He was convicted and sentenced to death as provided by the law. Which means he was convicted of attempted robbery with violence contrary to Section 297 (2) of the Penal Code.

3. The appellant has now come to this court on appeal challenging both conviction and sentence. He relied on his amended petition of appeal in which he stated that the plea was equivocal and the charge sheet was fatally defective, that the magistrate did not state the charge on which he convicted, and that he was not informed by the magistrate about the seriousness of the charge which carried a death penalty. The appellant also filed written submissions to the appeal, which he relied upon and which I have perused and considered.

4. The learned Principal Prosecuting Counsel Mr. Okemwa submitted that he appellant pleaded guilty to the charge and that the plea was thus unequivocal. On sentence, the Prosecuting Counsel submitted that though the sentence was severe, it was the mandatory sentence provided by law as such the trial court did not have any discretion in the matter.

5. I have perused and considered the record of the trial court. I have also considered the grounds of appeal, the written submissions of the appellant, and the submissions of the prosecuting counsel.

6. The appellant was charged with two counts, main count of attempted robbery and an alternative count of assault with intent to steal. He was convicted on his own plea of guilty but the magistrate did not indicate whether the conviction was on the main count or the alternative count, and was sentenced to death.

7. The main count was worded attempted robbery, not attempted robbery with violence. Such offence is created by Section 297 (1) of the Penal Code. Section 297 (2) of the Penal Code creates the offence of robbery with violence which is a distinct offence. The charge thus is referring to Section 297 (1) and (2) which relates to two different offences was defective. It should be noted that the sentence for an offence under Section 297 (1) is seven (7) years imprisonment and the sentence for an offence under Section 297 (2) is mandatory death penalty. The offence herein should thus be single attempted robbery.

8. Did the reference to Section 297 (1) and (2) make the charge and the plea fatally defective? In my view, it was not. The particulars of the charge were clear. The facts given by the prosecutor were all clear, and what the appellant said was also clear. In my view, the appellant knew what he was pleading to and pleaded as such. He was not warned by the trial court but such would only be necessary in my view, it the subject offence attracted a life or death sentence. I have held that it was simple attempted robbery attracting maximum sentence of 7 years, and thus hold that the defect is curable under Section 382 of the Criminal Procedure Code (Cap 75).

9. The appellant should not have been convicted for attempted robbery with violence as though the charge sheet talks about the appellant being in the company of others not before the court, the Prosecuting Counsel Mr. Mulama, did not in the summary of facts, say or suggest that the appellant was in the company of others. In convicting the appellant thus on attempted robbery with violence, the learned Magistrate erred.

10. The above reasoning is based on the fact that in criminal cases the burden is quite high. Even where an accused person pleads guilty to the charge the court has to be very careful before convicting and sentencing the accused. It has to be abundantly clear what offence is brought against him, as well as whether the facts do support the charge. That is the reasons why courts have been meticulous in recording pleas of guilty and convicting, as articulated in the case of ADAN –VS- REPUBLIC (1973) EA445, wherein the court laid down the steps to be taken by a court to avoid any doubt arising on the plea of guilty.

11. I will thus allow the appeal and quash the conviction for attempted robbery with violence and set aside the sentence of death. I will however enter a plea of guilty and conviction for the offence of attempted robbery contrary to Section 297 (1) of the Penal Code.

12. As for the sentence, the appellant said in mitigation that he had committed the offence and pleaded for mercy. He was also a first offender and did not waste the court’s precious time. The maximum sentence for attempted robbery contrary to Section 297 (1) of the Penal Code is seven (7) years imprisonment. The appellant was sentenced on 24th March 2017, about six (6) months ago.

13. Taking into account the above factors, I sentence the appellant to serve three (3) years imprisonment from the date that he was sentenced by the trial court.

14. Consequently, I quash the conviction and sentence for the offence of attempted robbery with violence. I however substitute a conviction for attempted robbery contrary to Section 297 (1) of the Penal Code, and order that the appellant will serve three (3) years imprisonment from the date when he was sentenced by the trial court.

Dated and delivered at Garissa on 3rd October, 2017.

GEORGE DULU

JUDGE