[2003] KEHC 1003 (KLR)
The court found that while the appellant was positively identified as the person who took the complainant's property, there was insufficient evidence to establish common intention with his companion, who wielded a knife. The evidence did not support a conviction for robbery with violence under section 296(2) of the...
Source-derived case information.
- Citation
- [2003] KEHC 1003 (KLR)
- Parties
- Appellant: Charles Okanga Irondanga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1043 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction for robbery with violence quashed; conviction for stealing from a person substituted; appellant sentenced to five years imprisonment with four strokes of the cane.
- Legal Topics
- Robbery With Violence, Stealing From Person, Sentencing, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Okanga Irondanga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly convicted of robbery with violence under section 296(2) of the Penal Code.
- 2 Whether the evidence established common intention between the appellant and his companion.
- 3 Whether the conviction should be substituted with a lesser offence under section 279(a) of the Penal Code.
Ratio Decidendi
The court found that while the appellant was positively identified as the person who took the complainant's property, there was insufficient evidence to establish common intention with his companion, who wielded a knife. The evidence did not support a conviction for robbery with violence under section 296(2) of the Penal Code. Instead, the facts established the offence of stealing from a person under section 279(a) of the Penal Code. The court therefore quashed the conviction for robbery with violence, set aside the death sentence, and substituted a conviction for stealing from a person, imposing a sentence of five years imprisonment with four strokes of the cane.
Court Disposition
Conviction for robbery with violence quashed; conviction for stealing from a person substituted; appellant sentenced to five years imprisonment with four strokes of the cane.
Orders
- The conviction under section 296(2) of the Penal Code is quashed.
- The sentence of death is set aside.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 1043 OF 2000
From Original Conviction and Sentence in Criminal Case No. 13115 of 1999 of the SP Magistrate’s Court at Kibera.
CHARLES OKANGA IRONDANGA………………..………APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
J U D G M E N T
The appellant was convicted of the offence of Robbery with violence c/s 296(2) of the Penal code and sentenced to death. This appeal arises from the said conviction.
The evidence was brief. The complaint had gone to watch a football match at Nyayo stadium when, after entering the main gate, he was accosted by two scouts one being the appellant herein. He had not paid the entry fee and when asked by the scouts why, he turned to go and pay but the appellant blocked his way. The two scouts are then said to have started to beat the complainant.
The appellant then allegedly “took the complainant’s wrist watch, Kshs. 5,000 cash and Id card”. The appellant’s companion is said to have produced a knife with which he tried to stab the complainant but missed. Only the complainant’s jacket was torn.
The complainant escaped and reported the matter to Nyayo police Post. The appellant was subsequently arrested and charged with this offence. In his defence he gave an alibi and alluded to some differences between him and the complainant. The learned trial magistrate however believed the evidence of the prosecution witness and convicted the appellant. The appellant was well known to the complainant. There was no mistaken identity. The appellant alluded to some disagreement with the complainant prior to that incident but that had no bearing with the offence charged.
The incident took place during broad daylight pw2 saw what happened his evidence and that of the complainant were corroborative. There is one issue however that we are unable to reconcile. It is true that the appellant was with another. Whereas we believe it was the appellant who took the complainant’s watch, money and identity card, there is no evidence that there was a common intention with his colleague who pulled out a knife and tried to stab the complainant. That being the case, we find that the offence proved against the appellant is that of stealing form a person c/s 279(a) of the penal code.
Accordingly we quash the conviction under section 296(2) of the Penal Code and set aside the sentence imposed. In place thereto, we enter a conviction under section 279(a) of the Penal Code.
The sentence provided for that offence is fourteen years imprisonment with corporal punishment. The appellant was treated as first offender as his records were not available. The offence is serious and appropriate punishment is called for.
We sentence the appellant to five(5) years imprisonment with four(4) strokes of the cane. The term of imprisonment shall run from the date of conviction.
Orders accordingly.
Dated and delivered at Nairobi this 29th day of July, 2003
MBOGHOLI MSAGHA
JUDGE
R. M. MUTITU
JUDGE