[2003] KEHC 400 (KLR)
The court found that the evidence did not support a conviction for robbery with violence under section 296(2) of the Penal Code because the injuries sustained by the complainant were not sufficiently proved by a qualified medical officer, and no X-ray report was produced. The injuries could only be described as soft...
Source-derived case information.
- Citation
- [2003] KEHC 400 (KLR)
- Parties
- Appellant: Edwin Ochieng Oyoko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 303 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Robbery With Violence, Sentencing, Evidence Admissibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Ochieng Oyoko
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for robbery with violence under section 296(2) of the Penal Code was sustainable on the evidence presented.
- 2 Whether the injuries sustained by the complainant were sufficiently proved to warrant a conviction under section 296(2).
- 3 Whether the sentence of death was appropriate in the circumstances.
Ratio Decidendi
The court found that the evidence did not support a conviction for robbery with violence under section 296(2) of the Penal Code because the injuries sustained by the complainant were not sufficiently proved by a qualified medical officer, and no X-ray report was produced. The injuries could only be described as soft tissue injuries. Additionally, the value of the goods robbed was minimal and most were recovered. The court therefore substituted the conviction to simple robbery under section 296(1) of the Penal Code. Considering the appellant was a first offender and had already served over three years in custody, the court held that this period constituted sufficient punishment. The death...
Court Disposition
appeal_allowed_in_part
Orders
- The conviction for robbery with violence under section 296(2) is substituted with a conviction for robbery under section 296(1) of the Penal Code.
- The death sentence is set aside.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 303 OF 2000
From Original Conviction and Sentence in Criminal Case No.1000 of 1999 of The Principal Magistrate’s Court at Maseno)
EDWIN OCHIENG OYOKO……… ………………………..APPELLANT VERSUS REPUBLIC………………………………………………….RESPONDENT
JUDGMENT
The appellant Edwin Ochieng Oyoko was convicted of the offence of Robbery with violence c/s. 296(2) of the Penal Code and sentenced to death. Aggrieved by the said conviction, he appealed.
At the hearing of his appeal, the learned counsel for the republic submitted that this was a fit case for substitution to Robbery c/s 296(1) of the Penal code.
We have looked at the record. The injuries sustained by pw2 and which were noted by pw1 cannot be sustained on evidence as the examining officer cannot be said to have been qualified to give such evidence under section 77, as amended by Act No. 14 of 1991, of the Evidence Act Cap.80 Laws of Kenya. No X-ray report was produced in evidence and at most the injuries can only be described as soft tissue injuries.
The value of the goods allegedly robbed of the complainant was also minimal and most of them were recovered. We therefore agree that the appellant should have been convicted of Robbery c/s 296(1) of the Penal Code.
The accused was said to be a first offender. The charge sheet shows that he was arrested on 3rd September, 1999 and arraigned in court on 8th September, 1999. He has now served just over 3 years and three months from the time he was convicted. The total period of incarceration however adds up to 3½ years.
In our judgment, we consider this sufficient punishment. We are inclined to allow the appeal on sentence and order that the death sentence is hereby set aside and in place hereof sentence the appellant to the period already served. He shall however receive 2(two) strokes of the cane after which he shall be released unless otherwise lawfully held. On his release, he shall be under police supervision for a period of 5 years.
Orders accordingly.
Dated and delivered at Nairobi this 27th day of March, 2003.
MBOGHOLI MSAGHA
JUDGE