[2001] KEHC 402 (KLR)
The court found that although the appellant robbed the complainant and possessed a revolver, there was no evidence of actual violence or injury inflicted during the robbery. The motor vehicle was recovered immediately, and the appellant had no previous convictions. The State did not oppose the substitution....
Source-derived case information.
- Citation
- [2001] KEHC 402 (KLR)
- Parties
- Appellant: Daniel Githiri Mungai; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1046 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction substituted; sentence varied
- Legal Topics
- Robbery, Sentencing, Firearm Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Githiri Mungai
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 and possessed a revolver, there was no evidence of actual violence or injury inflicted during the robbery. The motor vehicle was recovered immediately, and the appellant had no previous convictions. The State did not oppose the substitution. Consequently, the court held that the conviction for robbery with violence should be substituted with a conviction for simple robbery under section 296(1) of the Penal Code. The death sentence was set aside and replaced with a custodial sentence of five years imprisonment with two strokes, effective from the date of remand. The sentence for the second count was to run concurrently.
Court Disposition
conviction substituted; sentence varied
Orders
- Conviction for robbery with violence substituted with conviction for simple robbery under section 296(1) of the Penal Code.
- Death sentence on the 1st count set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO.1046 OF 1999
(From Original Conviction and Sentence in Criminal Case No.826 of 1999 of the Senior Principal Magistrate’s Court at Makadara).
DANIEL GITHIRI MUNGAI………………………………...APPELLANT
VERSUS
REPUBLIC………………………………………………..RESPONDENT
J U D G M E N T
The appellant now admits robbing the complainant of his motor vehicle Nissan Sunny Saloon, Reg. No.KAC, 533N as charged in the 1st count but has prayed for the substitution of the conviction for robbery, contrary to section 296(1), P.C. He also admits possessing the revolver as charged as charged and carjacked on the 2nd count.
The evidence was that the appellant, jointly with others, robbed the complainant of the motor vehicle on 23/12/98 and possessed the revolver at the time.
It be noted from the evidence that although the appellant was threatened with violence in the course of the robbery he was not inured at all.
We find this a proper case for the substitution. The motor vehicle was recovered at once.
The State Counsel M/S Ambari does not object to the substitution and rightly so.
The appellant had no previous conviction. He was in remand for about nine months. There is no remission for Robbery Sentence.
ORDER
We substitute the conviction for Robbery, contrary to section 296(1), P.C. and set aside the death sentence on the 1st Count. We sentence the appellant to five years imprisonment with effect from 24th September, 1999 plus two strokes. The sentence of four imprisonment on the 2nd count stands. It to run concurrently.
Dated and delivered at Nairobi this 2nd November, 2001. G.P. MBITO JUDGE
V.V. PATEL JUDGE