[2004] KEHC 1070 (KLR)
The court found that the evidence adduced at trial did not support the particulars of the charge of robbery with violence, as the complainant did not testify to being robbed of cash as alleged. Instead, the evidence established that the complainant was robbed of a torch, ID card, and voters card, and suffered...
Source-derived case information.
- Citation
- [2004] KEHC 1070 (KLR)
- Parties
- Appellant: Derrick Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 322 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction for robbery with violence quashed; conviction for assault causing actual bodily harm substituted; appellant released
- Legal Topics
- Robbery With Violence, Variance Between Charge and Evidence, Substitution of Conviction, Assault Causing Actual Bodily Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Derrick Otieno
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence adduced supported the charge of robbery with violence as laid in the particulars.
- 2 Whether the conviction for robbery with violence could stand where the complainant's testimony did not mention theft of cash as charged.
- 3 Whether the evidence supported a conviction for a lesser offence of assault causing actual bodily harm.
Ratio Decidendi
The court found that the evidence adduced at trial did not support the particulars of the charge of robbery with violence, as the complainant did not testify to being robbed of cash as alleged. Instead, the evidence established that the complainant was robbed of a torch, ID card, and voters card, and suffered injuries amounting to harm. The court held that the proper course was to quash the conviction for robbery with violence and substitute a conviction for assault causing actual bodily harm under section 251 of the Penal Code. Given that the appellant had already served two years in custody, the court deemed this sufficient punishment and ordered his immediate release unless otherwise...
Court Disposition
conviction for robbery with violence quashed; conviction for assault causing actual bodily harm substituted; appellant released
Orders
- The conviction for robbery with violence contrary to section 296(2) of the Penal Code is quashed.
- A conviction for assault causing actual bodily harm contrary to section 251 of the Penal Code is substituted.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA APPELLATE SIDE CRIMINAL APPEAL NO. 322 OF 2003 (From Original Conviction and Sentence in Criminal Case No. 3143 of 2003 of the Chief Magistrate’s Court at Mombasa L. Achode Principal Magistrate)
DERRICK OTIENO ………………………………………………..…. APPELLANT
Versus
REPUBLIC ……………………..…………………………………… RESPONDENT
J U D G M E N T
The Appellant was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the charge were that on the 17th day of December 2002 at about 7. 00 p.m., at Likoni Ferry area in Likoni location within Mombasa District of the Coast Province jointly with others not before court he robbed Vincent Simiyu cash Sh. 1,700/= and at or immediately before or immediately after the time of such robbery threatened to use actual violence to the said Vincent Simiyu. He pleaded not guilty but after trial he was convicted and sentenced to death. He has appealed against both the conviction and sentence.
At the hearing of the Appeal the Assistant Deputy Public Prosecutor conceded the appeal on the ground that the testimony of the complainant was at variance with the particulars of the charge.
We have ourselves perused the lower court record and agree with the -Assistant Deputy Public Prosecutor that the evidence adduced before the trial magistrate did not prove the charge as laid. The particulars of the charge as stated above were that the Appellant with others not before the court robbed the complainant P.W.2 cash Sh. 1,700/=. The complainant’s evidence, however, was that he was robbed of a torch, ID card and a voters card. He never made mention of having been robbed of cash of Sh. 1,700/= or any other sum.
The evidence adduced by the complainant, P.W.2 and the doctor, P.W.4, however, shows that the complaint, in the course of robbery suffered injuries to two fingers of his right hand. P.W.4, Dr. Lawrence Ngone, who completed the P.3 form assessed the injury as harm. That proved a lesser offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. In the circumstances and in exercise of the powers conferred upon us by section 354 of the Criminal Procedure Code, we quash the conviction on the charge of robbery with violence contrary to section 296(2) of the Penal Code and substitute therefor one of assault contrary to section 251 of the Penal Code.
As to sentence we note that the Appellant has been incarcerated for now two years. We think he has been punished enough. We therefore sentence him to an imprisonment term that will end today. The Appellant shall therefore be set free forthwith unless otherwise lawfully held.
DATED and delivered this 16th day of December 2004.
J. KHAMINWA
JUDGE
D.K. MARAGA
JUDGE