[2017] KEHC 1354 (KLR)
The court found that the prosecution failed to prove the offence of robbery with violence beyond reasonable doubt, as there was insufficient evidence regarding the recovery of the stolen phone from the accused. The court noted that while the complainant and a witness knew the appellant and there was evidence of...
Source-derived case information.
- Citation
- [2017] KEHC 1354 (KLR)
- Parties
- Appellant: Charles Omondi Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 79 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; conviction for robbery with violence quashed and substituted with conviction for simple assault; sentence reduced and appellant released to serve balance on probation.
- Judges
- DAS Majanja
- Legal Topics
- Robbery With Violence, Simple Assault, Sentencing, Proof of Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Omondi Onyango
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the offence of robbery with violence was proved beyond reasonable doubt.
- 2 Whether the conviction should be reduced to a lesser offence of simple assault under section 251 of the Penal Code.
- 3 What is the appropriate sentence upon conviction for simple assault.
Ratio Decidendi
The court found that the prosecution failed to prove the offence of robbery with violence beyond reasonable doubt, as there was insufficient evidence regarding the recovery of the stolen phone from the accused. The court noted that while the complainant and a witness knew the appellant and there was evidence of assault and harm, the critical element of theft was not established. Consequently, the court reduced the conviction to simple assault under section 251 of the Penal Code, a lesser and cognate offence, and imposed a sentence of three years' imprisonment, with the appellant to serve the balance of his sentence on probation.
Court Disposition
Appeal allowed in part; conviction for robbery with violence quashed and substituted with conviction for simple assault; sentence reduced and appellant released to serve balance on probation.
Orders
- The conviction for robbery with violence is quashed.
- The appellant is convicted of simple assault contrary to section 251 of the Penal Code.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT AT SIAYA
CRIMINAL APPEAL NO. 79 OF 2016
BETWEEN
CHARLES OMONDI ONYANGO ..… APPELLANT
AND
REPUBLIC ……………..………..… RESPONDENT
(Being an appeal against the original conviction and sentence ofHon. R.M. Oanda, Ag. PMdated 8th March 2013 in Ukwala Magistrates Court Criminal Case No. 56 of 2015)
JUDGMENT
1. The appellant, CHARLES OMONDI ONYANGO, was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the offence were that on the January 2015 in Ugunja District, Siaya County, he robbed Michael Ochieng Oduor of a TECHNO Mobile Phone valued at Ksh. 2,000/= and sandal shoes valued at Ksh. 200/= and immediately before or after such time, he beat Michael Ochieng Oduor. The appellant was convicted and sentenced to death.
2. Michael Ochieng Oduor (PW 1) and Samuel Oduor Ochieng (PW 2) were at Tingwang Centre on 9th August 2015 when the accused arrived on a motor bike came and stopped where they were and proceeded to assault PW 1. PW 1 ran off and went to report the incident to his uncle. The incident was reported to the police station on 15th January 2015 according to the Investigating Officer (PW 4).
3. PW 1 was seen by the Clinical Officer (PW 3) on the same day and he noted that he had injuries on the cheek, a swelling with partial inability to clench his teeth. He noted the injuries as harm.
4. Although one PW 4 stated that the Complainant’s TECHNO phone was recovered from the accused, he did not state when and how. The accused in his sworn statement merely denied the offence.
5. The incident took place at daytime and PW 1 and PW 2 knew the appellant. However, I hold that the offence of robbery with violence was not proved as it was not demonstrated whether the TECHNO phone was found with the accused. I therefore reduce the charge to one of simple assault contrary to section 251 of the Penal Code which is a lesser and cognate offence.
6. The appeal is allowed to the extent that the appellant to be convicted of simple assault contrary to section 251 of the Penal Code and sentenced to 3 years’ imprisonment. However, he is hereby released to serve the balance of his sentence on probation.
DATED AND SIGNED AT SIAYA THIS 22ND DAY OF DECEMBER 2017.
D. S. MAJANJA
JUDGE
Appellant in person.
Ms Odumba, Prosecution Counsel, instructed by the Officer of the Director of Public Prosecution for the State
Court Assistants: L. Odhiambo and L. Atika