[2002] KEHC 683 (KLR)
The court found that the injuries sustained by the complainant were not aggravated and the amount stolen was minimal (Kshs. 555). Therefore, the facts did not support a conviction for robbery with violence under section 296(2) of the Penal Code, which carries a mandatory death sentence. The appropriate charge should...
Source-derived case information.
- Citation
- [2002] KEHC 683 (KLR)
- Parties
- Appellant: Evans Shitangwa Kyayumba; Appellant: Joseph Njuguna Kagiri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1125 & 1127 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction under section 296(2) quashed; substituted with conviction under section 296(1); sentence of five years imprisonment, two strokes of the cane, and five years police supervision imposed.
- Legal Topics
- Robbery With Violence, Sentencing, Penal Code Section 296, Appeal Against Conviction, Substitution of Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Shitangwa Kyayumba
Appellant
Joseph Njuguna Kagiri
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction under section 296(2) of the Penal Code was proper given the facts of the case.
- 2 Whether the sentence of death was appropriate in light of the injuries and amount stolen.
- 3 Whether the conviction should be substituted to one under section 296(1) of the Penal Code.
Ratio Decidendi
The court found that the injuries sustained by the complainant were not aggravated and the amount stolen was minimal (Kshs. 555). Therefore, the facts did not support a conviction for robbery with violence under section 296(2) of the Penal Code, which carries a mandatory death sentence. The appropriate charge should have been simple robbery under section 296(1). The court quashed the convictions and sentences under section 296(2), substituted convictions under section 296(1), and imposed a sentence of five years imprisonment, two strokes of the cane, and five years police supervision upon completion of the custodial sentence.
Court Disposition
Conviction under section 296(2) quashed; substituted with conviction under section 296(1); sentence of five years imprisonment, two strokes of the cane, and five years police supervision imposed.
Orders
- Conviction under section 296(2) of the Penal Code quashed for each appellant.
- Sentence of death set aside for each appellant.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO 1125 OF 2001
From Original Conviction and Sentence Criminal Case No. 2265 of 2001 of
the Snr. Principal Magistrate’s Court at Kibera.
EVANS SHITANGWA KYAYUMBA…………………...…..APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 1127 OF 2001
(From Original Conviction and Sentence in Criminal Case NO. 2265 of
2001 of Snr. Principal Magistrate’s Court at Kibera)
JOSEPH NJUGUNA KAGIRI………………………………..APPELLANT
VERSUS
REPUBLIC………………………………………………….RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 1127 OF 2001
(From original conviction and sentence in Criminal Case No. 2265 of
2001 of Snr. Principal Magistrate’s Court at Kibera)
JOSEPH NJUGUNA KAGIRI……………………………….APPELLANT
VERSUS
REPUBLIC………………………………………………….RESPONDENT
JUDGMENT
These appeals are consolidated. The three appellants were convicted of the offence of Robbery with violence and sentenced to death. These appeals arise from the said convictions.
At the hearing of these appeals, the learned counsel for the republic urged the court to consider substituting the conviction to that under section 296(1) of the Penal Code.
We have given consideration to that submission, and after going through the record believe that, that should have been the right charge in the first place. The injuries sustained by the complainant were not of an aggravated nature and only shs. 555/- was said to have been stolen.
Accordingly the conviction under section 296(2) of the Penal code is hereby quashed and the sentence of death set aside.
We now enter a conviction for robbery c/s 296(1) of the Penal Code against each of the three appellants.
All the appellants were treated as first offenders their records were not available. They were arrested on 5th April, 2001 and sentenced on 11th October, 2001. They have been in custody for the last two years.
We order that each of the three appellants shall serve five years imprisonment form the date of conviction. In addition, each shall receive two strokes of the cane and on completion of sentence, be on police supervision for five years.
Orders accordingly
Right of appeal explained.
Dated and delivered at Nairobi this 4th day of June, 2002.
A. MBOGHOLI MSAGHA
JUDGE
R. M. MUTITU
JUDGE
Mr Bifwoli for the state