[2002] KEHC 1080 (KLR)
The court found that none of the complainants was able to identify the robbers and that no serious injuries were inflicted during the robberies. The prosecution, through the State counsel, did not object to the substitution of the convictions from robbery with violence to simple robbery under section 296(1) of the...
Source-derived case information.
- Citation
- [2002] KEHC 1080 (KLR)
- Parties
- Appellant: Fredrick Muchene; Appellant: Samuel Ngunjiri Wainana; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1216 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_partially_allowed
- Legal Topics
- Robbery With Violence, Sentencing, Firearms Offences, Conviction Substitution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Muchene
Appellant
Samuel Ngunjiri Wainana
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the convictions for robbery with violence should be substituted with convictions for simple robbery under section 296(1) of the Penal Code.
- 2 Whether the death sentences imposed on the appellants should be set aside and appropriate sentences imposed.
- 3 Whether the period spent in remand should be considered in sentencing.
Ratio Decidendi
The court found that none of the complainants was able to identify the robbers and that no serious injuries were inflicted during the robberies. The prosecution, through the State counsel, did not object to the substitution of the convictions from robbery with violence to simple robbery under section 296(1) of the Penal Code. The court agreed with the submissions, noting the recovery of stolen property from the appellants and the period spent in remand. Consequently, the court substituted the convictions on counts 1, 2, and 3 to simple robbery, set aside the death sentences, and imposed a custodial sentence of 5½ years imprisonment with one stroke of the cane for each count, to run from...
Court Disposition
appeal_partially_allowed
Orders
- Convictions on counts 1, 2, and 3 substituted to robbery contrary to section 296(1) of the Penal Code.
- Death sentences on counts 1, 2, and 3 set aside for both appellants.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 1216 of 1999
(From Original Conviction and Sentence in Criminal Case No.709 of 1997 of the Chief Magistrate’s Court at Nairobi).
FREDRICK MUCHENE…………………..............................................................……………..APPELLANT
VERSUS
REPUBLIC……………..........................................................………………………………..RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO.1050 OF 1999
(From Original Conviction and Sentence in Criminal Case No.709 of 1997 of the Chief Magistrate’s Court at Nairobi).
SAMUEL NGUNJIRI WAINANA………………..........................................................………..APPELLANT
VERSUS
REPUBLIC………………………….........................................................…………………..RESPONDENT
J U D G M E N T
Criminal appeal Nos.1261 of 1999 and 1959 of 1999 are consolidated.
Both appellants were convicted on each of the count Nos. 1,2 and 3 of Robbery with Violence, contrary to section 296(1), P.C. and sentenced to death. On the 4th and 5th counts they were convicted on each of the said counts of Possessing a firearm and ammunitions without firearm a certificate respectively. The sentence of the said two counts being three years imprisonment each to run concurrently. The convictions and sentences of the above five counts were on 22/9/1998.
Both appellants now admit that they committed the above five offences but have urged us to substitute their convictions on count Nos.1, 2 and 3 for Robbery, contrary to section 296(1), P.C. and set aside the death sentence.
The learned State counsel, Miss Ambasi has no objection to the substitution of the convictions against the appellants for contrary to section 296(1), P.C. on all the three counts.
None of three complainants – PW1, 4 and 8 in the robbery counts was able to identify any of their robbers. However, the rifle and the motor vehicle, some of the properties robbed of were recovered from the appellant’s not very long after the robberies.
We have seriously given consideration to the request of the appellants for the substitution of the robbery convictions. We note that none of the complainants received any serious injury during the course of the robberies. Indeed the learned Lady State Counsel for the Republic has no objection to the substitutions. With respect, we agree.
The appellants were in remand from March, 1997 until 22/9/98 when they were convicted and sentenced, i.e. a period of 18 months in remand before the case finally ended in the court below. There is no revision for robbery sentence.
Order:
We substitute the conviction on each of the court Nos. 1. 2. and 3 for Robbery, contrary to section 296(1), P.C. and set aside the death sentences against both the appellants.
We sentence each of the two appellants to 5½ years imprisonment with effect from 22-9-1998 plus one stroke each on each of the three counts, i.e. Nos.1, 2 and 3. The sentence of three years imprisonment on count Nos.4 and 5 against to
run concurrently with effect from 22-9-1998.
Dated and delivered on 24th January, 2002.
V.V. PATEL
JUDGE