[2001] KEHC 272 (KLR)
The court found that although the complainant was hit with a whip during the robbery, there was no medical evidence of injury, and the violence was not of such a serious nature as to warrant a conviction for capital robbery under section 296(2) of the Penal Code. The court exercised its discretion to substitute the...
Source-derived case information.
- Citation
- [2001] KEHC 272 (KLR)
- Parties
- Appellant: Eustace Ithenya Gathoni; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 477 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction substituted; sentence varied
- Judges
- GP Mbito, VV Patel
- Legal Topics
- Robbery, Sentencing, Substitution of Conviction, Handling Stolen Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eustace Ithenya Gathoni
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for capital robbery under section 296(2) of the Penal Code was appropriate given the facts of the case.
- 2 Whether the conviction should be substituted for robbery under section 296(1) of the Penal Code.
- 3 What is the appropriate sentence for the substituted conviction.
Ratio Decidendi
The court found that although the complainant was hit with a whip during the robbery, there was no medical evidence of injury, and the violence was not of such a serious nature as to warrant a conviction for capital robbery under section 296(2) of the Penal Code. The court exercised its discretion to substitute the conviction for robbery under section 296(1) of the Penal Code. The appellant, being a first offender and having spent nearly six months in remand, was sentenced to 3½ years imprisonment from the date of first remand, plus two strokes, and the death sentence was set aside.
Court Disposition
conviction substituted; sentence varied
Orders
- The conviction for capital robbery is substituted with a conviction for robbery contrary to section 296(1) of the Penal Code.
- The death sentence is set aside.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
APPELATE SIDE
CRIMINAL APPEAL NO. 477 OF 1999
(From Original Conviction and Sentence in Criminal Case No.2081 of 1998 of the Resident Magistrate’s Court at Nanyuki)
EUSTACE ITHENYA GATHONI…………….…APPELLANT
VERSUS
REPUBLIC………………………………….…RESPONDENT
J U D G M E N T
The appellant now admits that he robbed the complainant as charged but has requested us to substitute the examination for robbery, contrary to section 296(1), P.C. The evidence was that the appellant, jointly with others not before the court, robed the complainant on 31/10/99 of his bicycle. One crate, 2 jerricans, a calculator and cash Shs.102/-. The next day the appellant was arrested with the bicycle. We note that the appellant was charged on the alternative court of handling the said bicycle knowing it to be stolen contrary to section 322(2), P.C.
It is clear that the complainant was once hit on his back with a whip during the course of the robbery by one of the robbers. However, there is no medical evidence to show that he was injured as a result thereof. Having considered the evidence we are of the view that the Police using the discretion should have charged the appellant for robbery, contrary to section 296(1), P.C. instead of the capital robbery as the robbery was not of such a serious nature calling for the death sentence.
We find that the conviction is for the substitution as urged. The learned lady State Counsel M/S Ambasi does not object to the substitution either.
The appellant was a first offender and was in remand for nearly six months. There is no remission for robbery sentence.
ORDER
We substitute the conviction against the appellant for Robbery, contrary to section 296(1), P.C. and set aside the death sentence. We sentence the appellant to 3½ years imprisonment with effect from 21st April, 1999 plus two strokes.
Dated and delivered at Nairobi this 30th day of October, 2001.
G.P. MBITO
JUDGE
V.V. PATEL
JUDGE