[2002] KEHC 386 (KLR)
The court found that the facts of the case did not support a conviction under section 296(2) of the Penal Code (robbery with violence), but rather under section 296(1) (simple robbery). The appellant, a first offender and employee of the complainant, colluded with others to commit the robbery, but no one was injured...
Source-derived case information.
- Citation
- [2002] KEHC 386 (KLR)
- Parties
- Appellant: Johnson Sirikwa Sure; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 596 of 1997
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; conviction and sentence under section 296(2) quashed and substituted with conviction under section 296(1); appellant sentenced to period already served, two strokes of the cane, and five years police supervision.
- Legal Topics
- Robbery With Violence, Sentencing, Conviction Substitution, Penal Code Section 296, Custodial Sentence, Police Supervision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Sirikwa Sure
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly convicted under section 296(2) of the Penal Code or should have been convicted under section 296(1).
- 2 What is the appropriate sentence in light of the circumstances and time already served.
Ratio Decidendi
The court found that the facts of the case did not support a conviction under section 296(2) of the Penal Code (robbery with violence), but rather under section 296(1) (simple robbery). The appellant, a first offender and employee of the complainant, colluded with others to commit the robbery, but no one was injured and the stolen property was recovered. Given the period already served in custody (over five years), the court held that this was sufficient punishment. The conviction under section 296(2) and the death sentence were quashed, substituted with a conviction under section 296(1), and the appellant was sentenced to the period already served, two strokes of the cane, and five years...
Court Disposition
Appeal allowed in part; conviction and sentence under section 296(2) quashed and substituted with conviction under section 296(1); appellant sentenced to period already served, two strokes of the cane, and five years police supervision.
Orders
- Conviction under section 296(2) of the Penal Code quashed.
- Death sentence set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI(MILIMANI LAW COURTS)
CRIMINAL APPEAL NO. 596 OF 1997
FROM ORIGINAL CONVICTION(S) AND SENTENCE(S) IN
CRIMINAL CASE NO. 9960 OF 1995 OF THE PRINCIPAL
MAGISTRATE’S COURT AT KIBERA
JOHNSON SIRIKWA SURE……………………………….APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
JUDGMENT
The appellant Johnson Sirikwa Sure was convicted of the offence of Robbery with violence c/s 296(2) and sentenced to death. He appealed.
At the hearing of his appeal, the learned counsel for the republic observed that this was a fitting case for the application of section 296(1) to which the appellant agreed. In effect, the appellant was pleading guilty to the offence of robbery c/s 296(1) of the Penal Code.
We have perused the evidence and the judgment of the learned trial magistrate and with respect agree that the appellant ought to have been charged with the offence under section 296(1) aforesaid. The observations of the learned trial magistrate say as much.
Accordingly the appeal against both the conviction and sentence under section 296(2) of the Penal Code is hereby allowed by quashing the said conviction and setting the death sentence. We substitute therefore a conviction under section 296(1) of the Penal Code.
The appellant colluded with two other people to rob his employer. He was employed as a watchman. That was a breach of trust. To his advantage however, he was said to be a first offender. No one was injured in this incident.
The stolen motor vehicle was recovered and the value of the jewellery stolen is not specifically known. He was arrested on 24th July, 1995 and as at the time of his conviction on 8th May, 1997 and sentence on 22nd May, 1997 he had spent about two years in custody. To date he has served five years and four months in prison.
The seriousness of the offence notwithstanding we consider the said period of imprisonment sufficient in the circumstances of the case. Accordingly, we sentence the appellant to a prison term equal to the period already served in prison to date. The appellant shall also receive two strokes of the cane after which he shall be released unless otherwise lawfully held. Upon his release, he shall be under police supervision for a period of five years.
Orders accordingly.
Dated and delivered at Nairobi this 1st day of October, 2002
MBOGHOLI MSAGHA
JUDGE