[2001] KEHC 804 (KLR)
The court found that although the appellant, together with others, robbed the complainant of her motor vehicle and cash, there was no evidence of injury to the complainant during the robbery and the vehicle was recovered shortly after. The prosecution did not establish the aggravating circumstances required for a...
Source-derived case information.
- Citation
- [2001] KEHC 804 (KLR)
- Parties
- Appellant: Ezekiel Ngaruiya Thuita; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 129 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction for robbery with violence substituted with conviction for simple robbery; death sentence set aside; appellant sentenced to 3½ years imprisonment from 9th February, 2000 plus two strokes.
- Legal Topics
- Robbery, Sentencing, Conviction Substitution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ezekiel Ngaruiya Thuita
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 should be substituted with a conviction for simple robbery under section 296(1) of the Penal Code.
- 2 Whether the sentence of death should be set aside and an appropriate sentence imposed.
Ratio Decidendi
The court found that although the appellant, together with others, robbed the complainant of her motor vehicle and cash, there was no evidence of injury to the complainant during the robbery and the vehicle was recovered shortly after. The prosecution did not establish the aggravating circumstances required for a conviction under section 296(2) of the Penal Code. The state counsel did not object to the substitution. The court therefore held that the proper conviction should be under section 296(1) for simple robbery. The death sentence was set aside and replaced with a custodial sentence and corporal punishment, taking into account the appellant's lack of previous convictions and time...
Court Disposition
Conviction for robbery with violence substituted with conviction for simple robbery; death sentence set aside; appellant sentenced to 3½ years imprisonment from 9th February, 2000 plus two strokes.
Orders
- Conviction substituted to robbery contrary to section 296(1) of the Penal Code.
- Death sentence set aside.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL NO.129 OF 2000(From Original Conviction and Sentence in Criminal Case No.19 of 1999 of the Senior Resident Magistrate’s Court at Kiambu). EZEKIEL NGARUIYA THUITA……………………….APPELLANT VERSUS REPUBLIC………………………………………………RESPONDENT J U D G M E N T The appellant now admits that he robbed the complainant as stated but has requested me to substitute the conviction for robbery, contrary to section 296(1), P.C.
The evidence was that the appellant jointly with others robbed the complainant of her motor vehicle and the cash Sh.400/-. The motor vehicle was found with the appellant about five days later and he was arrested with it.
In considering the request for the substitution, I note that the complainant was not at all injured during the course of the robbery and the motor vehicle was soon recovered.
It is my considered view that the Police should have charged the appellant for robbery, contrary section 296(1), P.C.
The learned state counsel, Mr. Okello has no serious objection to the substitution asked for and, with respect, I agree.
The appellant had no previous conviction. He was in remand for nearly one year. There is no remission for robbery sentence.
ORDER:
I substitute the conviction for Robbery, contrary to section 296(1), P.C. and set aside the death sentence.
I sentence the appellant to 3½ years imprisonment with effect from 9th February, 2000 plus two strokes.
Dated and delivered at Nairobi this 27th June, 2001.
V.V. PATEL JUDGE