[2001] KEHC 208 (KLR)
The court found that although the appellants admitted to robbing the complainant, the injury inflicted was minor and there was no medical evidence to suggest otherwise. The circumstances did not meet the threshold for robbery with violence under section 296(2) of the Penal Code, which attracts the death penalty. The...
Source-derived case information.
- Citation
- [2001] KEHC 208 (KLR)
- Parties
- Appellant: Johana Nabutere Esivindi; Appellant: Hezron Andage Amataka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 533 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction substituted to robbery under section 296(1) of the Penal Code; death sentences set aside; appellants sentenced to 3.5 years imprisonment from 13/4/99 plus two strokes each.
- Legal Topics
- Robbery, Sentencing, Conviction Substitution, Death Penalty, Section 296 1 Penal Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johana Nabutere Esivindi
Appellant
Hezron Andage Amataka
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 should be substituted with a conviction under section 296(1).
- 2 Whether the death penalty imposed was appropriate given the circumstances of the robbery and the absence of serious injury.
Ratio Decidendi
The court found that although the appellants admitted to robbing the complainant, the injury inflicted was minor and there was no medical evidence to suggest otherwise. The circumstances did not meet the threshold for robbery with violence under section 296(2) of the Penal Code, which attracts the death penalty. The appropriate charge was simple robbery under section 296(1). The court also considered the appellants' clean records and the period already spent in remand. Consequently, the court substituted the conviction to robbery under section 296(1), set aside the death sentences, and imposed a custodial sentence of 3.5 years imprisonment from the date of conviction, plus two strokes of...
Court Disposition
Conviction substituted to robbery under section 296(1) of the Penal Code; death sentences set aside; appellants sentenced to 3.5 years imprisonment from 13/4/99 plus two strokes each.
Orders
- Conviction against each appellant substituted for robbery contrary to section 296(1), Penal Code.
- Death sentences set aside.
Full Case Text
Judgment text and source record
10 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL NO.533 OF 1999 (From Original Conviction and in Criminal Case No.2124 of 1997 of the Six Resident Magistrate’s Court at Vihiga)
JOHANA NABUTERE ESIVINDI………………………...APPELLANT VERSUS REPUBLIC………………………………………………...RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO.534 OF 1999
HEZRON ANDAGE AMATAKA…..……………………...APPELLANT VERSUS REPUBLIC………………………………………………...RESPONDENT J U D G M E N T
Criminal appeal Nos.533 and 534 of 1999 are consolidated. Both appellants now admit robbing the complainant as charged but have prayed for the substitution of the conviction for Robbery, contrary to section 296(1), P.C. The evidence in the court below was that on 25th September, 1997 the appellants, jointly with others robbed the complainant of his goods from his kiosk wothSh.12,664/=. The complainant was injured on the head during the course of the robbery but there was no medical evidence on it as it must have been minor injury.
In our view this was not any serious type of robbery calling for death penalty. The Police should have brought the charge contrary to section296(1), P.C. We are inclined to grant the request for the substitution. The learned lady State Counsel M/S Ambasi has no objection to it either. The appellants had past clean records and were in remand for about 18 months. There is no remission for robbery sentence.
ORDER:
We substitute the conviction against each of the two appellants for Robbery, contrary to section 296(1), P.C. and set aside the death sentences. We sentence both appellants to 3 ½ years imprisonment with effect from 13/4/99 plus two strokes each.
G.P. MBITO JUDGE 1/11/01 V.V. PATEL JUDGE 1/11/01