[2002] KEHC 406 (KLR)
The court found that although the appellants were convicted of robbery with violence under section 296(2) of the Penal Code, there was no medical evidence of injury to any of the complainants during the robberies. The appellants admitted to the offences and were first offenders. The prosecution, through the State...
Source-derived case information.
- Citation
- [2002] KEHC 406 (KLR)
- Parties
- Appellant: Fredrick Aura Omukanga; Appellant: Timona Sichangi Wamoto; Appellant: Ronald Lusabe Masifwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 433, 434 of 1999
- Procedural Posture
- Criminal Appeal / Judgment After Consolidated Appeals
- Outcome
- convictions substituted; death sentences set aside; custodial sentences imposed
- Judges
- VV Patel
- Legal Topics
- Robbery With Violence, Plea of Guilty, Substitution of Conviction, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Aura Omukanga
Appellant
Timona Sichangi Wamoto
Appellant
Ronald Lusabe Masifwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment After Consolidated Appeals
Legal Issues
- 1 Whether the convictions for robbery with violence under section 296(2) of the Penal Code should be substituted with convictions for robbery under section 296(1), Penal Code.
- 2 Whether the death sentences imposed should be set aside and substituted with custodial sentences.
Ratio Decidendi
The court found that although the appellants were convicted of robbery with violence under section 296(2) of the Penal Code, there was no medical evidence of injury to any of the complainants during the robberies. The appellants admitted to the offences and were first offenders. The prosecution, through the State counsel, agreed with the appellants' request for substitution. The court determined that the circumstances justified substituting the convictions to robbery under section 296(1) of the Penal Code and setting aside the death sentences. The court imposed custodial sentences of 5½ years imprisonment on each count, to run concurrently, plus one stroke of the cane on each count, with...
Court Disposition
convictions substituted; death sentences set aside; custodial sentences imposed
Orders
- Convictions for robbery with violence under section 296(2) of the Penal Code against all three appellants on each count are substituted with convictions for robbery under section 296(1), Penal Code.
- Death sentences against all appellants are set aside.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 433 OF 1999
(From original Conviction and sentence in Criminal case No 7379 of 1997
of the Principal Magistrate’s Court at Kibera).
FREDRICK AURA OMUKANGA……………………..….APPELLANT
VERSUS
REPUBLIC ……………………………………………….RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 434 OF 1999
(From original Conviction and sentence in Criminal case No 7379 of 1997
of the Principal Magistrate’s Court at Kibera).
TIMONA SICHANGI WAMOTO…..………………….….APPELLANT
VERSUS
REPUBLIC ………………………………………………..RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 1123 OF 1997
(From original Conviction and sentence in Criminal case No 7379 of 1997
of the Principal Magistrate’s Court at Kibera).
RONALD LUSABE MASIFWA….………………….…..….APPELLANT
VERSUS
REPUBLIC ……………………………………….………..RESPONDENT
J U D G M E N T
Criminal appeal Nos. 433 and 434 of 1999 and No. 1123 of 1997 are consolidated.
Ronald Lusabe , the appellant in the appeal No.1123 of 1997, was convicted on his own plea of guilty on all the three counts of the Robbery with Violence, contrary to section 296(2), P.C. He was warned by the magistrate on the consequences of entering the pleas of guilty but he still maintained the pleas. Before us, at the hearing of the appeals, he accepted that he committed the said robberies as charged but has urged us to substitute the convictions against him for Robbery, contrary to section 296(1), P.C. on each count.
The two appellants in the Criminal Appeal Nos. 433 and 434 of 1999 were convicted on all three counts after a full trial. Each of the said two have now admitted to us that they committed the said robberies but have requested us to substitute their convictions for Robbery, contrary to section 296(1), P.C. on each count.
The evidence was that the complaints in the first two counts are husband and wife respectively while the one in the 3rd count is their driver.
The complainants in the 1st and 2nd counts were robbed of the properties specified in the particulars of the charge on the night of 14th August, 1997 at their house at Mbagathi Ridge, Karen.
On the material night Margaret (the complainant in the 2nd count) returned to her house driving a car at about 7 p.m. and the watchman (Ronald , the appellant who pleaded guilty) opened the gate. She parked the car and as she proceeded towards the house, she was confronted by the robbers. She was taken into the house. Her two children and house servants and Margaret (the complainant) were all ordered to lie down and the appellants and their cronies started demanding for money. They were armed with pistols and simis. They tied up Margaret’s hands and robbed her of the property as stated.
Further evidence was that Margaret’s husband (the complaint in the 1st count) came to the house with his driver (complainant in the 3rd count) at around 10. 30 p.m. when the robbers were still at his house and found his family members lying down. One of the robbers asked him to raise his hands and another one tied his eyes with polythene papers. He was ordered to lie down and a knife was place don his neck. They demanded money from him while threatening him with a pistol. They robbed him of all the household property together with cash ksh.5,000/=, 400 US dollars and 200 south African rands as stated in the particulars of the 1st count.
Thereafter, the robbers locked up all the family members in a toilet.
The robbers had tied the hands and legs of the driver, the complainant in the 3rd count. The robbers put the loot in the 1st complainant’s motor vehicle and ordered his driver (the 3rd complainant) to take them to where they would order him. The driver obeyed. As directed he drove to Ngong road and then through Jamhuri park to a bridge off to Kibera slums into the forest. The appellants and their chuma got out there robbing the complainant of his Sh.1500/=, a pair of shoes and personal documents. He was then allowed to drive away, which he did, and reported the robberies to the police.
In considering the requests for the substitutions we note that there was no medical evidence to show that any of the three complainants was injured in the course of the robberies. A few of the items robbed of were recovered.
It is our considered view that this a suitable case for the substitution asked for. Indeed, Mr. Monda, the learned State counsel for Republic also concurs to it. All three appellants were first offenders. There is no remission for robbery sentence. Order:
The convictions against all the three appellants on each of the three counts are substituted for Robbery, contrary to section 296(1), P.C. and the death sentences are set aside.
Each of the three appellants is sentenced to 5½ years imprisonment on each of the three counts to run concurrently plus one stroke each on each count.
The above sentence against Ronald Lusabe Masifwa, the appellant in Criminal Appeal No.1123 of 1997 be with effect from 15th September, 1997.
The sentences against the two appellants viz, Fredrick Aura Omukanga and Timonah Sichangi Wamoto (appellants in Criminal Appeal Nos. 433 and 434 of 1999 to run with effect from 29th April 1999.
The judgment delivered on 20th day of March, 2002.
V.V. PATEL
JUDGE
W.K. TUYOIT
JUDGE