[2004] KEHC 1414 (KLR)
The Court of Appeal held that it was improper for a single judge of the High Court to enhance the conviction from simple robbery under section 296(1) to robbery with violence under section 296(2) of the Penal Code. Section 359(1) of the Criminal Procedure Code requires that appeals from convictions under section...
Source-derived case information.
- Citation
- [2004] KEHC 1414 (KLR)
- Parties
- Appellant: Moses Gitonga Wairagu; Appellant: Samwel Kinyua Kariuki; Appellant: Charles Mwangi Gitau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 71 of 2003
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- Appeal allowed; conviction and sentence of death set aside; matter remitted to High Court for rehearing by two judges.
- Legal Topics
- Robbery With Violence, Simple Robbery, Criminal Procedure on Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Gitonga Wairagu
Appellant
Samwel Kinyua Kariuki
Appellant
Charles Mwangi Gitau
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether a single judge of the High Court can enhance a conviction from simple robbery under section 296(1) to robbery with violence under section 296(2) of the Penal Code without constituting a bench of two judges.
- 2 Whether the appellants were properly warned of the consequences of proceeding with the appeal.
Ratio Decidendi
The Court of Appeal held that it was improper for a single judge of the High Court to enhance the conviction from simple robbery under section 296(1) to robbery with violence under section 296(2) of the Penal Code. Section 359(1) of the Criminal Procedure Code requires that appeals from convictions under section 296(2) be heard by two judges. Furthermore, the appellants were not warned of the possible consequences of proceeding with the appeal. The failure to comply with these procedural safeguards rendered the proceedings irregular. Consequently, the conviction and sentence of death imposed by the High Court were set aside, and the matter was remitted to the High Court for rehearing by a...
Court Disposition
Appeal allowed; conviction and sentence of death set aside; matter remitted to High Court for rehearing by two judges.
Orders
- The appeals are allowed.
- The conviction and sentence of death are set aside.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CRIMINAL APPEAL 71 OF 2003
BETWEEN
MOSES GITONGA WAIRAGU
SAMWEL KINYUA KARIUKI
CHARLES MWANGI GITAU ………………......…..………………… APPELLANTS
AND
REPUBLIC …..……………………………………………………….. RESPONDENT
JUDGMENT OF THE COURT
The magistrate had tried the appellants on a charge of robbery with violence under section 296 (2) of the Penal Code but in the judgment the appellants were convicted of the offence of simple robbery under section 296 (1) of the Penal Code. They appealed to High Court against the conviction and sentence and when admitting the appeal to hearing, Rimita, J, as he then was, directed that the appeals be heard by a single Judge. That was obviously because the appellants had been convicted of the lesser charge of simple robbery under section 296(1) of the Penal Code. The practice of the High Court, based on the provisions of section 359 (1) of the Criminal Procedure Code is that appeals by persons convicted under section 296 (2) are heard by two Judges. We think Mr Justice Visram was not justified, sitting all by himself, in changing the conviction from section 296 (1) to one under section 296 (2) of the Penal Code. If Visram, J, thought he was going to do so, he ought to have asked another Judge of the High Court to sit with him and then to warn the appellants of the possible consequences of their proceeding with the appeals. We accordingly allow the appeals, set aside the conviction and sentence of death and remit the appeals to the High Court for a rehearing by two judges. The appellants shall remain in prison and continue to serve the sentences imposed by the magistrate. Those shall be our orders.
Dated and delivered at Nakuru this 21st day of September, 2004.
R. S. C. OMOLO
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JUDGE OF APPEAL
E. O. O’KUBASU
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JUDGE OF APPEAL
E. M. GITHINJI
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JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR