[2002] KEHC 495 (KLR)
The court found that the appellant was issued with the firearm used in the attempted robbery and failed to return to duty on the night in question. The appellant's defence was rejected as false, and the prosecution evidence was accepted as credible. However, since no one was injured during the attempted robbery, the...
Source-derived case information.
- Citation
- [2002] KEHC 495 (KLR)
- Parties
- Appellant: Edward Longorot Choi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1213 of 1998
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction substituted; sentence varied
- Judges
- VV Patel, F Tuiyott
- Legal Topics
- Attempted Robbery, Robbery With Violence, Criminal Sentencing, Identification Evidence
- 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
Edward Longorot Choi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly identified as one of the robbers involved in the attempted robbery with violence.
- 2 Whether the evidence linking the appellant to the offence was sufficient to sustain a conviction.
- 3 Whether the conviction for attempted robbery with violence should be substituted with a conviction for attempted robbery under section 297(1) of the Penal Code.
Ratio Decidendi
The court found that the appellant was issued with the firearm used in the attempted robbery and failed to return to duty on the night in question. The appellant's defence was rejected as false, and the prosecution evidence was accepted as credible. However, since no one was injured during the attempted robbery, the court held that the conviction for attempted robbery with violence under section 297(2) of the Penal Code should be substituted with a conviction for attempted robbery under section 297(1). The court also considered the appellant's lack of previous convictions, the period spent in remand, and the fact that he gained nothing from the offence, in determining the appropriate...
Court Disposition
conviction substituted; sentence varied
Orders
- The conviction for attempted robbery with violence under section 297(2) of the Penal Code is substituted with a conviction for attempted robbery under section 297(1) of the Penal Code.
- The death sentence is set aside.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO.1213 OF 1998
(From Original Conviction and Sentence in Criminal Case No.3244 of 1997
of the Chief Magistrate’s Court at Kisii).
EDWARD LONGOROT CHOI…………………………….APPELLANT
VERSUS
REPUBLIC……………………………………………....RESPONDENT
J U D G M E N T
The appellant was convicted of attempted Robbery with Violence contrary to section 297(2), P.C. and sentenced to death on 25th August, 1998.
It was not in dispute that two robbers attempted to rob the complainant, PW1 of his motor vehicle, Reg. No.KTN 099, Peugeot 504 Pick up on 12/12/97 at about 8 p.m. at Oyugi’s shopping center. One of the robbers had a gun which he pointed at the complainant’s wife (PW6) at the time. The complainant struggled with the tug who had the gun and snatched the gun from him and pushed him out of the vehicle. Both robbers ran away as a result and disappeared.
Neither the complainant nor his wife was able to identify the robbers.
According to both of them the robber with the gun was of a slim built as the appellant.
The evidence on which the learned lady magistrate relied upon in convicting the appellant related to the gun.
The appellant was attached at Kisumu Police Station as a Police Corporal. P.C. Chepkok (PW5) had issued the gun in question to the appellant at about 6 p.m. on the material day, ie. 12/12/97. The appellant and P.C. Richard Mwamu (PW3), who was also issued with a gun, were assigned on night duty to guard the police lines at the Kisumu Police Station.
The appellant has not disputed this fact.
In his unsworn defence the appellant stated that he performed his night duty on 12/12/97 until 9 p.m. when he became sick and PW3, P.C. Mwamu (wrongly typed as P.C. Mwaniki) helped him to his house. He added that he left his gun with PW3.
Evidence of PW3 was that the appellant never told him that he was sick nor did he leave the gun with him. He (PW3) said that after reporting on duty at 6 p.m. the appellant, who was wearing a black Police coat upon a local shirt, long trouser and shoes, told him that he had not eaten, wanting to go to eat and return. He did not return.
PW3 did not speak about 9 p.m. or escorting the appellant to his house nor did the appellant cross examined him on them. Further it be noted that the attempted robbery took place at about 8 p.m. and that too far away at Oyugis in which the gun issued to the appellant at 6 p.m. that day was used.
The appellant did not return to duty the whole night.
PW7 (wrongly typed as PW8), P.C. John shared the house with the appellant at the police lines. He said that on the night in question at about mid night he checked for the appellant in his room but did not find him.
P.C. Okumu, PW9 (wrongly typed as PW10) also did not find the appellant in his room at night when he returned to the house.
The learned Magistrate considered the evidence for the prosecution and the appellant’s defence with utmost care. She accepted the prosecution evidence as true and rejected the defence as false. We agree with her.
We have given careful consideration to the entire evidence on record together with the grounds of the appeal. We find no merits in any of the grounds raised. The appellant never handed over the gun to his colleague PW3 on the night in question. It was used for the conviction of the present offence at about 8 p.m. at Oyugis on12/12/97 as found by the court below.
The appellant’s involvement in the offence was all there.
We now turn to consider whether this is a proper case for the substitution of the conviction for attempted robbery, contrary to section 297(1), P.C.
We note that no one was at all injured during the course of the attempted robbery.
We find this to be a suitable case to substitute the conviction for attempted robbery, contrary to section 297(1), P.C.
The appellant had no previous conviction. He was in remand for about eight months before the conviction. The sentence was passed on 25/8/98. there is no remission for attempted robbery sentence. The appellant gained nothing and lost his job.
Order:
We substitute the conviction for Attempted Robbery, contrary to section 297(1), P.C. and set aside the death sentence. We sentence the appellant to six years imprisonment with effect from 25/8/98 plus two strokes.
Dated and delivered this 20th February, 2002.
V.V. PATEL
JUDGE
W.K. TUIYOT
JUDGE