[2002] KEHC 1079 (KLR)
The court found that although the appellant was apprehended at the scene and identified by police officers as participating in the robbery, the complainant was not able to identify any of the robbers and did not suffer serious injuries. The evidence did not meet the threshold for robbery with violence under section...
Source-derived case information.
- Citation
- [2002] KEHC 1079 (KLR)
- Parties
- Appellant: Isaya Aswan Khayo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 587 of 1998
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction substituted; sentence varied
- Judges
- VV Patel
- Legal Topics
- Robbery With Violence, Sentencing, Identification Evidence, Appeals, Substitution of Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaya Aswan Khayo
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 was supported by the evidence.
- 2 Whether the sentence of death was appropriate given the circumstances of the case.
- 3 Whether the conviction should be substituted for simple robbery under section 296(1) of the Penal Code.
Ratio Decidendi
The court found that although the appellant was apprehended at the scene and identified by police officers as participating in the robbery, the complainant was not able to identify any of the robbers and did not suffer serious injuries. The evidence did not meet the threshold for robbery with violence under section 296(2) of the Penal Code. The court agreed with the state counsel that the appropriate conviction should be for simple robbery under section 296(1), given the lack of serious injury and the circumstances of the offence. The court also considered the appellant's lack of previous convictions and the period spent in remand in determining the appropriate sentence.
Court Disposition
conviction substituted; sentence varied
Orders
- The conviction for robbery with violence under section 296(2) of the Penal Code is substituted with a conviction for robbery under section 296(1) of the Penal Code.
- The death sentence is set aside.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL APPEAL NO. 587 OF 1998
(From Original Conviction and Sentence in Criminal Case No.16095 of 1997 of the Principal Magistrate’s Court at Makadara).
ISAYA ASWAN KHAYO….…………..........……………………APPELLANT
VERSUS
REPUBLIC……….…………...............……………………….RESPONDENT
J U D G M E N T
The appellant’s appeal is against his conviction for Robbery with Violence contrary to section 296(2), P.C. and the sentence of death.
The evidence for the presentation established that the complainant (PW1) was robbed of his cash Sh.1000/- at about 7 p.m. on 17th September, 1997 when he was on his way along Race Course road in Nairobi by a gang of about 7 to ten people.
The complainant testified that during the course of the robbery one of the thugs held him by his neck and his Shs.1000/= was removed from his pocket. He was not able to identify any of the robbers.
The appellant denied the charge. His defence was that when he was on his way he saw a person with a pistol who held him and beat him up wanting to know where the others were. He was arrested, taken to the police station and charged with the present offence.
The evidence against the appellant connecting him with the offence came from two police officers, i.e. PW2 and 3. Their evidence was that they were on patrol at the material time on the race course road when they saw a group of people mugging the complainant. Thereupon I.P Matu (PW2) fired a shot from his gun. He saw the appellant who was holding the complainant. The appellant ran. They chased him. The appellant climbed a wall to the first floor and hid behind a water tank. They climbed up, the appellant jumped from the top and they arrested the appellant.
The learned Senior Resident Magistrate considered the evidence for the prosecution and the defence with care. He believed the two police officers and rejected the appellant’s defence. We find no merits in any of the grounds raised on the appeal. The appellant was caught red handed.
Mr. Monda, the learned state counsel has opposed the appeal. However, he considers this case as a proper one for the substitution of the conviction for Robbery, contrary to section 296(1), P.C. Having given our minds to this point we are very much inclined to agree with the learned state counsel. It is clear that the complainant was not at all seriously injured. The doctor, PW4 classified his injuries, viz soft tissue injuries on the neck and bruises on the left knee and leg as harm. The complainant was robbed of Shs.1000/= only.
The appellant had no previous conviction. He was in remand from September, 1997 until 19th May, 1998, i.e. for about eight months. There is no remission for robbery sentence.
Order:
We substitute the conviction against the appellant for Robbery, contrary to section 296(1), P.C. and set aside the death sentence. We sentence the appellant to four years imprisonment with effect from 19th May, 1998 plus two strokes.
Dated and delivered this 23rd January, 2002.
V.V. PATEL
…………………
JUDGE
W.K. TUYOIT
………….....……
JUDGE