[1983] KECA 82 (KLR)
The Court of Appeal found that the evidence did not support a conviction for robbery with violence as charged. The facts indicated a bar brawl over a woman rather than a violent robbery. The complainant's loss of money was not sufficiently linked to a violent theft by the appellant. The state counsel agreed that the...
Source-derived case information.
- Citation
- [1983] KECA 82 (KLR)
- Parties
- Appellant: Gitungu Nguru; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 32 of 1983
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction for robbery with violence quashed; conviction for common assault substituted; appellant released forthwith
- Judges
- CB Madan
- Legal Topics
- Robbery With Violence, Common Assault, Sentencing, Summary Rejection of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gitungu Nguru
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence supported a conviction for robbery with violence contrary to section 296(2) of the Penal Code.
- 2 Whether the appellant's actions constituted common assault rather than robbery with violence.
- 3 Whether the sentence imposed was appropriate given the facts.
Ratio Decidendi
The Court of Appeal found that the evidence did not support a conviction for robbery with violence as charged. The facts indicated a bar brawl over a woman rather than a violent robbery. The complainant's loss of money was not sufficiently linked to a violent theft by the appellant. The state counsel agreed that the proper charge should have been common assault. The court therefore quashed the conviction and sentence for robbery with violence, substituted a conviction for common assault under section 250 of the Penal Code, and ordered the appellant's immediate release as he had already served more than the maximum sentence for common assault.
Court Disposition
appeal allowed; conviction for robbery with violence quashed; conviction for common assault substituted; appellant released forthwith
Orders
- The appeal is allowed.
- The conviction and sentence for robbery with violence contrary to section 296(2) of the Penal Code are quashed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
crim app 32 of 83
GITUNGU NGURU ………………………………………………… APPELLANT
AND
REPUBLIC …………………………..………………………….. RESPONDENT
(Appeal from an order of the High Court of Kenya at Nakuru (Bennett J) dated 26th November, 1971
in
Criminal Appeal No 284 of 1971)
JUDGMENT OF THE COURT
CHESONI AG JA
The appellant was charged with robbery with violence contrary to section 296(2) of the Penal Code (cap 63). He was convicted and sentenced to 14 years imprisonment with hard labour and in addition to receive twelve strokes of the cane.
On September 28, 1981, Herson Egesa (PW 1) and Helena Hakwabe (PW 2) left the Municipal Beerhall together. This was at about 8. 30 pm and Herson said it was dark.
When they were still within the hall’s compound they met with three men who attacked them. Helen ran back to the hall for help. Herson struggled with one of the man and they fell into a ditch. The other two men ran away. Meanwhile Helena came back with two men. The appellant who had fallen into the ditch with Herson was overpowered, arrested and taken to the police. Herson said that before he was attacked he had Kshs 300 in his pocket which he lost during the attack as he did not have it after the appellant was arrested. He said his assailants had searched his pockets. That was the prosecution case. The appellant’s case was that he brushed shoulders with the woman Herson was with and that caused Herson to get hold of him. The appellant apologized and explained that he was drunk. The complainant did not accept the apology and a struggle ensued between them.
The appellant’s appeal to the High Court was summarily rejected by Bennett J on November 29, 1971, and we do not know why it had to take ten years for the present appeal to reach this court. Be that as it may, the evidence, pointed to a bar brawl over a woman rather than robbery with violence. The state counsel agrees that it was a case of common assault.
We allow the appeal, quash the conviction and set aside the sentence for robbery with violence contrary to section 296(2) including corporal punishment and also the order for police supervision. We substitute therefore a conviction for common assault contrary to section 250 of the Penal Code. As the appellant has served more than the sentence provided for common assault we order that he be at liberty forthwith.
Delivered at Nakuru this 22nd day of March, 1983.
C B MADAN
JUDGE OF APPEAL
K D POTER
JUDGE OF APPEAL
Z R CHESONI
AG JUDGE OF APPEAL
I certify that this is a true Copy of the original DEPUTY REGISTRAR