[2001] KEHC 257 (KLR)
The court found that although the appellant robbed the complainant and inflicted harm during the escape, the circumstances did not amount to a very serious type of robbery warranting a conviction under section 296(2) of the Penal Code. The court accepted the appellant's admission and the state counsel's concurrence...
Source-derived case information.
- Citation
- [2001] KEHC 257 (KLR)
- Parties
- Appellant: John Wanyoike Ndungu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 588 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction substituted; sentence varied
- Judges
- VV Patel
- Legal Topics
- Robbery, Sentencing, Conviction Substitution, Harm Classification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Wanyoike Ndungu
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 custodial sentence imposed.
Ratio Decidendi
The court found that although the appellant robbed the complainant and inflicted harm during the escape, the circumstances did not amount to a very serious type of robbery warranting a conviction under section 296(2) of the Penal Code. The court accepted the appellant's admission and the state counsel's concurrence that the conviction should be substituted for simple robbery under section 296(1). The court also considered the appellant's time spent in remand and previous conviction, determining that a custodial sentence of four years imprisonment plus two strokes was appropriate, and set aside the death sentence previously imposed.
Court Disposition
conviction substituted; sentence varied
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
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO.588 OF 1999
(From Original Conviction and Sentence in Criminal Case No.1105 of 1998 of the Chief Magistrate’s Court at Thika)
JOHN WANYOIKE NDUNGU……………………………....APPELLANT VERSUS REPUBLIC…………………………………………………..RESPONDENT
J U D G M E N T
The appellant now admits that he robbed the complainant as charged but has asked for the substitution of the conviction for Robbery, contrary to section 296(1), P.C. The evidence was that the appellant robbed the complainant of a battery worth Sh.1,500/=. In his effort to escape the appellant stabbed the complainant (a watchman) on his shoulder. The complainant screamed and the members of the public helped in the arrest of the appellant. The battery was recovered. The complainant’s injury was classified as harm.
Having evaluated the evidence we find that this robbery not being of a very serious type the request for the substitution of the conviction be granted. The learned lady state counsel M/S Ambasi is equally in favour of it. The appellant was in remand for about 14 months. He had one previous conviction for house breaking and theft for which he was placed on probation. There is no remission for robbery sentence.
ORDER:
We substitute the conviction 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 3rd June, 1999 plus two strokes.
Dated and delivered at Nairobi this 31st day of October, 2001. G.P. MBITO JUDGE V.V. PATEL JUDGE