[2002] KEHC 382 (KLR)
The court found that although the appellant participated in the robbery, the circumstances did not justify a conviction for robbery with violence under section 296(2) of the Penal Code. The property was largely recovered, no one was injured during the robbery, and the prosecution did not object to the substitution....
Source-derived case information.
- Citation
- [2002] KEHC 382 (KLR)
- Parties
- Appellant: John Njoroge Wamiti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 759 of 1998
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction substituted to simple robbery; death sentence set aside; appellant sentenced to five years imprisonment and two strokes.
- Judges
- VV Patel
- Legal Topics
- Robbery, Sentencing, Conviction Substitution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njoroge Wamiti
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for robbery with violence should be substituted with a conviction for simple robbery under section 296(1) of the Penal Code.
- 2 Whether the sentence of death should be set aside and an appropriate sentence imposed.
Ratio Decidendi
The court found that although the appellant participated in the robbery, the circumstances did not justify a conviction for robbery with violence under section 296(2) of the Penal Code. The property was largely recovered, no one was injured during the robbery, and the prosecution did not object to the substitution. The court therefore substituted the conviction to simple robbery under section 296(1) of the Penal Code, set aside the death sentence, and imposed a sentence of five years imprisonment with two strokes of the cane, effective from the date of remand.
Court Disposition
Conviction substituted to simple robbery; death sentence set aside; appellant sentenced to five years imprisonment and two strokes.
Orders
- The conviction for robbery with violence is substituted with a conviction for robbery contrary to section 296(1) of the Penal Code.
- The death sentence is set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO.759 OF 1998
(From Original Conviction and Sentence in Criminal Case
No.1132 of 1997 of the Senior Resident Magistrate’s Court at Naivasha)
JOHN NJOROGE WAMITI………………………………APPELLANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
J U D G M E N T
The appellant has now admitted that he was one of the robbers who robbed the complainant as charged but has urged us to substitute the conviction for Robbery, contrary to section 296(1), P.C.
The evidence on record was that on the material day in May, 1997, when the complainant was driving a lorry Reg. No.KYZ 355, Isuzu FTR loaded with 280 bags of fertilizer along Longonot/Naivasha road in Naivasha area, the appellant and his cronies blocked it. The complainant and his turn boy were = removed from the lorry and put in a pick up the robbers had. Some of them drove them away in the pick up and dumped them in Suswa area while the rest of them drove away with the lorry containing the bags of the fertilizer.
The lorry was later abandoned and recovered. The appellant was arrested and with his help some of the bags with fertilizer were recovered. The police also recovered some money from some of those who were sold some of the bags. We have considered the appellant’s request for the substitution. The lorry and some bags and money were recovered. No one was injured in the course of the robbery. Mr. Monda, the learned state counsel has no objection to the substitution either and, with utmost respect, we agree. The appellant’s previous conviction was in November, 1982 for which he was fined Shs.1,700/=. It must be ignored. He was in remand for one year. There is no remission for Robbery sentence.
Order:
The conviction of the appellant in substituted for Robbery, contrary to section 296(1), P.C. and the death
sentence is set aside. We sentence the appellant to five years imprisonment with effect from 25th June, 1998 plus two strokes.
Dated and delivered at Nairobi this 22nd February, 2002.
V.V. PATEL
JUDGE