[1999] KEHC 169 (KLR)
The court found that although the appellants jointly robbed the complainants and some injuries were inflicted, the injuries were classified as harm and not grievous harm, and one complainant was not injured at all. The facts did not meet the threshold for robbery with violence under section 296(2) of the Penal Code....
Source-derived case information.
- Citation
- [1999] KEHC 169 (KLR)
- Parties
- Appellant: Dennis Kilonzi Mulatya; Appellant: Sammy Musyoka Kilonzi; Appellant: Issaac Isika Musyoka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1230 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- convictions substituted; death sentences set aside; imprisonment and corporal punishment imposed
- Judges
- GP Mbito, VV Patel
- Legal Topics
- Robbery, Sentencing, Conviction Substitution, Section 296 1 Penal Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Dennis Kilonzi Mulatya
Appellant
Sammy Musyoka Kilonzi
Appellant
Issaac Isika Musyoka
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the convictions for robbery with violence under section 296(2) of the Penal Code should be substituted with convictions for simple robbery under section 296(1) of the Penal Code.
- 2 Whether the death sentences imposed on the appellants should be set aside and substituted with imprisonment and corporal punishment.
Ratio Decidendi
The court found that although the appellants jointly robbed the complainants and some injuries were inflicted, the injuries were classified as harm and not grievous harm, and one complainant was not injured at all. The facts did not meet the threshold for robbery with violence under section 296(2) of the Penal Code. Consequently, the court held that the appropriate conviction was for simple robbery under section 296(1). The court also considered that the appellants were first offenders and had spent about one year in remand. The death sentences were set aside and substituted with imprisonment sentences to run concurrently from the date of conviction, plus two strokes on each count.
Court Disposition
convictions substituted; death sentences set aside; imprisonment and corporal punishment imposed
Orders
- Convictions against the three appellants on both counts substituted for robbery contrary to section 296(1) of the Penal Code.
- Death sentences set aside.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 1230 OF 1999
(From Original Conviction and Sentence in Criminal Case No.2335 of 1999
Senior Principal Magistrate’s Court at Machakos).
DENNIS KILONZI MULATYA…………………...…..………APPELLANT
VERSUS
REPUBLIC………………………………………………….RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO.1231 OF 1999
(From Original Conviction and Sentence in Criminal Case No.2335 of 1999
Senior Principal Magistrate’s Court at Machakos).
SAMMY MUSYOKA KILONZI……………………..………APPELLANT
VERSUS
REPUBLIC………………………………………………….RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO.1232 OF 1999
(From Original Conviction and Sentence in Criminal Case No.2335 of 1999
Senior Principal Magistrate’s Court at Machakos).
www.kenyalawreports
ISSAAC ISIKA MUSYOKA……………………..…..………APPELLANT
VERSUS
REPUBLIC………………………………………………….RESPONDENT
J U D G M E N T
Criminal Appeal Nos. 1230, 1231 and 1232 of 1999 are consolidated. The other co-convict, Matetei Muasya Musili died in prison pending the hearing of his appeal No.1229/99 and the said appeal is now marked as abated.
The three appellants in court have now admitted that they robbed the two complainants counts as charged but charged but have urged us to substitute their convictions for Robbery, contrary to section 296(1), P.C.
The evidence was that the appellants jointly with others, robbed the 1st complainant of property worth Sh.20,730/= and the 2nd complainant of the property worth Sh.21,000/= on the night of 16th/17th December, 1998.
It is clear from the testimonies of the 1st complainant (Martin) and his wife that both of them were injured during the cause of the robbery. However, their injuries were classified as harm.
The 2nd complainant was not injured at all. Some property of the two complainants was set on fire by the robbers.
Having considered the evidence we find this to be a suitable case for the substitution of the convictions for contrary to section 296(1), P.C.
The learned State Counsel M/S Ambasi has no objection to the substitution.
All the three appellants were first offenders. They were in remand for about one year. There is no remission for robbery sentence.
ORDER:
We substitute the convictions against the three appellants on both counts for Robbery, contrary to section 296(1), P.C. and set aside the death sentences. We sentence each of the three appellants imprisonment to run concurrently with effect from 8th November, 1999 plus two strokes on each count.
Dated and delivered at Nairobi this 1st November, 1999.
G.P. MBITO
JUDGE
V.V. PATEL
JUDGE