[2022] KEHC 14892 (KLR)

Jawad alias Ali v Republic (Criminal Appeal E004 of 2022) [2022] KEHC 14892 (KLR) (7 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14892 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E004 of 2022

WA Okwany, J

November 7, 2022

Between

Ali Ahmed Jawad alias Ali

Appellant

and

Republic

Respondent

(Being an Appeal from the Original Conviction and Sentence of Hon. F. Rashid (mr) The Senior Principal Magistrate’s Court at Winam in Criminal Case Number 662 of 2018 Republic Vs Ali Ahmed Jawad Alias Ali delivered on the 27th Day of January 2022)

Judgment

1. The appellant herein Ali Ahmed Jawad alias Ali and one Ibrahim Oluoch alias Justice Oluoch were jointly charged before the lower court with two counts of robbery with violence contrary to Section 296(2) of the Penal Code.

2. The particulars are that on the September 22, 2018 at Riat Maembe Moja area in Kisumu East Sub County within Kisumu County Ibrahim Oluoch alias Justice Oluoch and Ali Ahmed Jawad, jointly with others not before court, while armed with dangerous and offensive weapons namely a gun, robbed one Shadrack Maloba of a mobile phone make Samsung J7 worth shs 30,000, a radio make Sony worth shs 9500, a gas cooker worth shs 6000, a TV guard valued at shs 3000, a Blackberry mobile phone worth shs 11,000, a set of three wall pictures worth shs 6000, cash worth shs 1700 transferred via mpesa all valued at shs 70,200 the property of Shadrack Maloba and immediately after the said robbery, threatened to use actual violence against the said Shadrack Maloba.

3. The accused persons were similarly charged with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particular are that Ibrahim Oluoch alias Justice Oluoch and Ali Ahmed Jawad alias Ali; on the September 22, 2018 at Riat Maembe Moja area in Kisumu East Sub County within Kisumu County, jointly with other not before court, while armed with dangerous weapons namely a gun robbed one Stella Mutiembu off a mobile phone make Samsung E5 worth shs 23,000. A Lenovo phone worth shs 13,000, a Toshiba laptop worth shs 90,000, a rack sack worth shs 8,000, and cash shs 3800 all valued at shs 137,800 the property of Stella Mutiembu and immediately after the time of such robbery used actual violence against the said Stella Mutiembu.

4. The appellant’s co-accused skipped bail and absconded from the court while the appellant was tried convicted and sentenced to 15 years imprisonment with a rider that the imprisonment period shall commence from November 7, 2018 when the appellant took plea.

5. Aggrieved by the conviction and sentence, the appellant lodged the instant appeal and listed the following grounds of Appeal in his Petition of Appeal:-1. That the trial court failed to observe that the sentence imposed is/was manifestly harsh and disproportionate.2. That the court be pleased to consider that I was a first offender and remorseful.3. That the court be pleased to consider that the sentence be reviewed.4. That the court be pleased to consider any aspect or condition that shall not occasion prejudice.5. That the appellant hereby beseeches the superior court to indulge into the same and or be pleased to reduce the sentence proportionately as enshrined in the Article 50 (2) of the Constitution.

6. When the appeal came up for hearing on August 3, 2022, the appellant submitted that he did not object to his conviction but urged the court to reduce his sentence.

7. Ms Odumba, learned counsel for the state opposed the appeal and submitted that the sentence meted out on the appellant was lenient as the offence of robbery with violence attracts a maximum death sentence.

8. Ms Odumba noted that the appellant was armed with a gun and used violence on the victim who was not only injured but also lost property in the robbery. Counsel noted that there were no mitigating circumstances to warrant the reduction of the sentence.

9. I have carefully considered the Record of Appeal and I note that the trial magistrates satisfied himself that the offence of robbery with violence had been proved against the appellant to the required standards.

10. Section 296(2) of thePenal Code stipulates as follows on the sentence for the said offence:-“(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

11. In the present case, I note that the trial court considered the gravity of the offence, the appellant’s mitigation and the fact that he had been in custody for some time before sentencing him to 15 years imprisonment.

12. I find that the sentence meted out on the appellant was not only lenient but also commensurate with the offence in question. I find no reason to interfere with the finding on sentence.

13. Consequently, I dismiss the appeal.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 7TH DAY OF NOVEMBER 2022. W. A. OKWANYJUDGEIn the presence of:Court Assistant - Ojala