[1992] KEHC 148 (KLR)
The court found that the prosecution proved all elements of the offence of demanding money with menaces under section 302 of the Penal Code. There was clear evidence that the appellants, acting as police officers, demanded Shs 100/- from the complainant with the threat of arrest and charge for possession of...
Source-derived case information.
- Citation
- [1992] KEHC 148 (KLR)
- Parties
- Appellant: David W Ngeretha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 177 & 178 of 1991
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed, convictions upheld, sentences reduced
- Legal Topics
- Demanding Money With Menaces, Elements of Offence, Corroboration of Evidence, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David W Ngeretha
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellants demanded money with menaces contrary to section 302 of the Penal Code.
- 2 Whether the prosecution proved the offence beyond reasonable doubt.
- 3 Whether the conviction was proper in light of the evidence adduced.
Ratio Decidendi
The court found that the prosecution proved all elements of the offence of demanding money with menaces under section 302 of the Penal Code. There was clear evidence that the appellants, acting as police officers, demanded Shs 100/- from the complainant with the threat of arrest and charge for possession of chang’aa. The demand was accompanied by force, as the complainant was handcuffed and handled violently. The evidence of the complainant was corroborated by Mr Muchunku and other witnesses, and the marked note was recovered from one appellant. The court rejected the grounds of appeal, upheld the convictions, but considered the appellants' youth and potential for reform in reducing the...
Court Disposition
appeal dismissed, convictions upheld, sentences reduced
Orders
- Convictions of both appellants are upheld.
- Sentences for each appellant are reduced to nine months’ imprisonment.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL APPEALS NOS 177 & 178 OF 1991(CONSOLIDATED)
DAVID W NGERETHA...........................APPELLANT
VERSUS
REPUBLIC.........................................RESPONDENT
(From original Criminal Case No 884 of 1989 of Principal Magistrate’s Court at Nyeri (Njuguna Kimani R M ))
JUDGMENT
These two appeals have been consolidated for convenient disposal. The two appellants, then police constables at Nyeri, were after trial convicted of demanding money with menances contrary to section 302 of the Penal Code in that on 26/1/1989 in Majengo Village in Nyeri District demanded money with menaces namely Shs 100/- from one Nicholas Kibui so that he might not be arrested and charged with possession of chang’aa.
The complainant testified that he was accosted by PC Mwaruko and the two appellants who told him starkly on the face that he traded in chang’aa,an allegation which he readily denied. They told him that a jerry can they had with them was his, a fact he denied. They then grabbed him by the trousers and by the hands and handcuffed him. He vehemently protested but in vain.
PC Mwaruko told him that unless he gave them Shs 100/- they would take him to the police station and charge him. He told them that he had no money but they advised him to go home, look for it and meet them later at the Green Bar. On his way home he met PW4, Wambugu, to whom he narrated his ordeal. This witness led him to Mr Muchunku the Senior Assistant Commissioner for Police who received and acted on the complaint. His quick move led to the arrest of the three police officers.
Both the appellants gave sworn evidence and denied the charge laid against them.
The prosecution’s case was based mainly on the evidence of the complainant. It was cogent and consistent. It received corroboration from the testimony of Mr Muchunku who instructed the setting up of the trap. The Shs 100/- note provided by him was recovered from the trouser pocket of the appellant, Nduva.
Further, more corroboration on the evidence of the complainant can be found in the evidence of PW2 and PW3.
In my view, the charge against the two appellants was proved beyond any reasonable doubt.
On a charge under section 302 of the Penal Code the prosecution must prove that:-
1. A demand for a valuable thing was made;
2. The demand was made with intent to steal;
3. The demand was made with menaces or force; and
4. The demand was addressed or made to a person.
As far as the first requirement is concerned, there is no question but that money is a valuable thing. There was ample evidence that Shs 100/- was demanded and given by the appellants.
There was intent to steal once there was intent to take without the consent of the complainant, the person to whom the demand was made. See Okech v R[1968] EA. By demanding Shs 100/- the only intention by the appellants was to steal the money.
The appellants handled the complainant and handcuffed him. This was with force and some violence so as to make him accede unwillingly to the demand.
Consequently, upon evaluation of the entire evidence on record I am satisfied that the appellants were correctly convicted and the convictions are upheld. I reject the grounds of appeal.
PC Mwaruko was an active accessory to the felony and led the newly employed appellants in the commission of the crime. It is regrettable that he was illegally shielded from prosecution. Chief Inspector Mutingu told the trial court:-
“The complainant mentioned that PC Mwaruko had demanded the money ---- There were instructions that only the two accused should be charged.”
This was open bias by the police against the appellants.
However, that did lessen the gravity of the offence.
The force cannot be cleaned of bad elements if there are still some rotten and protected potatoes in the sack.
I observe that the appellants will not be retained in the force after their convictions and that they are young men with a wide and long future ahead of them. They may reform and rehabilitate. I reduce the sentence for each appellant to nine (9) months’ imprisonment.
Order: Convictions upheld.
Sentences reduced to nine months’ imprisonment.
Dated and delivered at Nyeri this 22nd day of January 1992.
P. K TUNOI
JUDGE