[2001] KEHC 318 (KLR)
The court found that although the appellant robbed the complainant, the injuries sustained by the complainant were classified as harm and not serious enough to warrant a conviction for robbery with violence under section 296(2) of the Penal Code. The court, therefore, exercised its discretion to substitute the...
Source-derived case information.
- Citation
- [2001] KEHC 318 (KLR)
- Parties
- Appellant: Alex Nasir Salim; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 190 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction substituted; custodial sentence imposed; death sentence set aside
- Legal Topics
- Robbery, Sentencing, Conviction Substitution, Harm Classification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Nasir Salim
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for robbery with violence should be substituted with a conviction for simple robbery under section 296(1) of the Penal Code.
- 2 Whether the sentence of death should be set aside and an appropriate custodial sentence imposed.
Ratio Decidendi
The court found that although the appellant robbed the complainant, the injuries sustained by the complainant were classified as harm and not serious enough to warrant a conviction for robbery with violence under section 296(2) of the Penal Code. The court, therefore, exercised its discretion to substitute the conviction to simple robbery under section 296(1) and set aside the death sentence. The appellant was sentenced to three and a half years imprisonment from the date of remand, plus two strokes of the cane, with the sentence for possession of cannabis sativa to run concurrently. The absence of previous convictions and the period already spent in remand were considered in mitigation.
Court Disposition
conviction substituted; custodial sentence imposed; death sentence set aside
Orders
- The conviction against the appellant is substituted for robbery contrary to section 296(1) of the Penal Code.
- The death sentence is set aside.
Full Case Text
Judgment text and source record
7 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL NO. 190 OF 1999 (From Original Conviction and Sentence in Criminal Case No.1234 of 1998 of the Principal Magistrate’s Court at Kakamega). ALEX NASIR SALIM ……………………………………APPELLANT VERSUS REPUBLIC……………………………………………..RESPONDENT J U D G M E N T
The appellant now admits that he robbed the complainant as charged in the 1st count but has prayed us to substitute the said conviction for Robbery, contrary to section296(1),P.C.
The evidence was that the appellant robbed the complainant on 29/8/98 of us clothes 160, Kshs.1880/-, on wrist watch and a long trouser.
In the course of the robbery the appellant was injured on his head and right hand. However, the said injuries were not serious and were classified as harm.
Having evaluated the evidence we find that this is a proper case for the substitution asked for. The learned State Counsel M/s Ambasi agrees. The appellant had no previous count. He was in remand for about five months. There is no revision for Robbery sentence.
ORDER We substitute the conviction against the appellant for Robbery, contrary to section 296(1), P.C. and set aside the death sentence. We sentence the appellant to 3½ years imprisonment with effect from 5th May, 1999 plus 2 strokes. The sentence of 2 years imprisonment for possessing cannabis sativa to run concurrently.
Dated and delivered at Nairobi this 2nd day of November, 2001. G.P. MBITO JUDGE V.V. PATEL JUDGE