[2001] KEHC 344 (KLR)
The court found that although the appellants admitted to participating in the robberies, the circumstances did not meet the threshold for robbery with violence under section 296(2) of the Penal Code. The robberies involved property of relatively low value, no serious violence was used, and no medical evidence of...
Source-derived case information.
- Citation
- [2001] KEHC 344 (KLR)
- Parties
- Appellant: George Omware Nyanya; Appellant: Moses Otieno Okal; Appellant: Peter Otieno Nyamila; Appellant: Joshua Omondi Oluoch; Appellant: Joseph Yewa Owiti; Appellant: Ben Juma Odhiambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 1303 of 1999
- Procedural Posture
- Criminal Appeal / Judgment on Appeal and Sentencing
- Outcome
- Convictions for robbery with violence substituted with simple robbery; death sentences set aside; custodial sentences imposed to run concurrently.
- Judges
- VV Patel
- Legal Topics
- Robbery With Violence, Sentencing Principles, Appeal Against Conviction, Substitution of Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Omware Nyanya
Appellant
Moses Otieno Okal
Appellant
Peter Otieno Nyamila
Appellant
Joshua Omondi Oluoch
Appellant
Joseph Yewa Owiti
Appellant
Ben Juma Odhiambo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal and Sentencing
Legal Issues
- 1 Whether the convictions for robbery with violence under section 296(2) of the Penal Code should be substituted with simple robbery under section 296(1).
- 2 Whether the death sentences imposed were appropriate in the circumstances of the case.
- 3 Whether the sentences should run concurrently.
Ratio Decidendi
The court found that although the appellants admitted to participating in the robberies, the circumstances did not meet the threshold for robbery with violence under section 296(2) of the Penal Code. The robberies involved property of relatively low value, no serious violence was used, and no medical evidence of injury was produced. Consequently, the convictions for robbery with violence were substituted with convictions for simple robbery under section 296(1). The death sentences were set aside and replaced with custodial sentences of four years imprisonment for each appellant, plus two strokes of the cane. The court further ordered that the sentences on each of the four counts should...
Court Disposition
Convictions for robbery with violence substituted with simple robbery; death sentences set aside; custodial sentences imposed to run concurrently.
Orders
- Convictions for robbery with violence under section 296(2) substituted with convictions for robbery under section 296(1) for each appellant on all four counts.
- Death sentences set aside for all appellants.
Full Case Text
Judgment text and source record
110 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO.1303 OF 1999
(From Original Conviction and Sentence in Criminal Case No.606
of 1998 of the Principal Magistrate’s Court at Maseno).
GEORGE OMWARE NYANYA & OTHERS………….APPELLANTS
V E R S U S
REPUBLIC……………………………………………...RESPONDENT
MOSES OTIENO OKAL……………………………….….APPELLANT
V E R S U S
REPUBLIC……………………………………………….RESPONDENT
CONSOLIDATED WITH
PETER OTIENO NYAMILA……………………………..APPELLANT
V E R S U S
REPUBLIC……………………………………………...RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO.1307 OF 1999
(From Original Conviction and Sentence in Criminal case No.606
of 1998 of the Principal Magistrate’s Court at Maseno).
JOSHUA OMONDI OLUOCH…………………………….APPELLANT
V E R S U S
REPUBLIC……………………………………………….RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 1306 OF 1999
(From Original Conviction and Sentence in Criminal case No.606
of 1998 of the Principal Magistrate’s Court at Maseno).
JOSEPH YEWA OWITI……………………………………APPELLANT
V E R S U S
REPUBLIC..………………………………………………RESPONDENT
CONSOLIDATED WITH
(From Original Conviction and Sentence in Criminal case No.606
of 1998 of the Principal Magistrate’s Court at Maseno).
BEN JUMA ODHIAMBO…………………………………..APPELLANT
V E R S U S
REPUBLIC………………………………………..………RESPONDENT
28/6/2001
All 6 appellants are present on Production Orders.
No appearance for Republic – served
COURT:
Each of the six appellants says that he admits committing
all the four robberies but each of then respondents that the
convictions be substituted for simple robberies and the death
sentence be set aside.
J U D G M E N T
Criminal Appeal Nos.1303, 1307,1308,1309,1306 and 1304 of 1999 are consolidated.
The appellants were convicted on each of the four counts of Robbery with Violence, contrary to section 296(2), Penal Code and sentenced to death.
Each appellant now admits that he took part in the commission of the robberies but has requested me to substitute the convictions for Robbery, contrary to section 296(1), Penal Code and set aside the death sentences.
The evidence was that the appellants jointly with others robbed the four complainants of the properties stated in the particulars of each count. All the said robberies were convicted on the might of 2nd July, 1998 in Bondo District.
In considering the request for the substitution I note that none of the four robberies was of value more than Shs.8,000/-. Further that no serious violence was used either in the center of the robberies. No medical evidence was produced in the court below either.
I consider this to be a suitable care for the substitution.
The appellants were arrested in July 1998 and were in remand until June, 1999 when they were convicted and sentenced. None of the appellants had any previous convicted. There is no remission for robbery sentences.
ORDER
I substitute the convictions against each of the six appellants on each of the four counts for Robbery, contrary to section 296(1), P.C. and set aside the death sentences.
I sentence Peter Otieno Nyamila, Joshua Omondi Oluoch and Joseph Yawa Owiti to four years imprisonment each with effect from 23rd June, 1999 plus two strokes each.
I sentence George Omware Nyanya. Moses Otieno Okal and Ben Juma Odhiambo to four years imprisonment each with effect from 30th June, 1999 plus two strokes each.
DATED and DELIVERED at NAIROBI this 28th June, 2001.
V.V. PATEL
JUDGE
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO.1303 OF 1999
(From Original Conviction and Sentence in Criminal Case No.606
of 1998 of the Principal Magistrate’s Court at Maseno).
GEORGE OMWARE NYANYA & OTHERS………….APPELLANTS
V E R S U S
REPUBLIC……………………………………………...RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO.1307 OF 1999
(From Original Conviction and Sentence in Criminal case No.606
of 1998 of the Principal Magistrate’s Court at Maseno).
MOSES OTIENO OKAL……………………………….….APPELLANT
V E R S U S
REPUBLIC……………………………………………….RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO.1308 OF 1999
(From Original Conviction and Sentence in Criminal Case No.606
of 1998 of the Principal Magistrate’s Court at Maseno).
PETER OTIENO NYAMILA……………………………..APPELLANT
V E R S U S
REPUBLIC……………………………………………...RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO.1309 OF 1999
(From Original Conviction and Sentence in Criminal Case No.606
of 1998 of the Principal Magistrate’s Court at Maseno).
JOSHUA OMONDI OLUOCH…………………………….APPELLANT
V E R S U S
REPUBLIC……………………………………………….RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 1306 OF 1999
(From Original Conviction and Sentence in Criminal Case No.606
of 1998 of the Principal Magistrate’s Court at Maseno).
JOSEPH YEWA OWITI……………………………………APPELLANT
V E R S U S
REPUBLIC..………………………………………………RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO.1304 OF 1999
(From Original Conviction and Sentence in Criminal Case No.606
of 1998 of the principal Magistrate’s Court at Maseno).
BEN JUMA ODHIAMBO…………………………………..APPELLANT
V E R S U S
REPUBLIC………………………………………..………RESPONDENT
17/1/2002
COURT:
The Signal from the Kisumu Main Prison,
Ref.No.KMU/PRIS/4/6/VOL.II/326 refers.
Please note that it ordered that the prison sentences of
four years against each of the six appellants on each of the four
count to run concurrently.
V.V. PATEL
JUDGE