[2002] KEHC 1087 (KLR)
The court found that the facts of the case did not justify a conviction for robbery with violence under section 296(2) of the Penal Code, as the complainant suffered only minor harm and the amount stolen was minimal. The police should have exercised discretion and charged the appellant with simple robbery under...
Source-derived case information.
- Citation
- [2002] KEHC 1087 (KLR)
- Parties
- Appellant: Musyimi Mulinge; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 921 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction for robbery with violence substituted with conviction for simple robbery; death sentence set aside; appellant sentenced to 4 years imprisonment and 2 strokes.
- Legal Topics
- Robbery, Sentencing, Substitution of Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musyimi Mulinge
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 for simple robbery.
Ratio Decidendi
The court found that the facts of the case did not justify a conviction for robbery with violence under section 296(2) of the Penal Code, as the complainant suffered only minor harm and the amount stolen was minimal. The police should have exercised discretion and charged the appellant with simple robbery under section 296(1). The court, with no objection from the state, substituted the conviction accordingly and set aside the death sentence, imposing a custodial sentence and corporal punishment instead.
Court Disposition
Conviction for robbery with violence substituted with conviction for simple robbery; death sentence set aside; appellant sentenced to 4 years imprisonment and 2 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
9 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL NO.921 OF 1999 (From Original conviction and Sentence in Criminal Case No.366 of 1999 of the Principal Magistrate’s Court at Machakos). MUSYIMI MULINGE……………………………………..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 requested us to substitute the conviction for Robbery, contrary to section 296(1), P.C.
The evidence was that on 21st August, 1998, the appellant robbed the complainant when he was on his way at about 7. 30 p.m. at Kariobangi Estate, Machakos . The appellant hit the complainant with an iron bar in the course of the robbery.
In considering the request for the substitution we note that the complainant was robbed of only Sh.1000/- and no more. The injury he received was not serious and it was classified as harm.
It is our considered view that the police should have used their discretion and brought the charge against the appellant of Robbery, contrary to section 296(1), P.C. in such a simple type of robbery as this one.
Mr. Monda, the learned state counsel has no objection to the substitution and rightly so. The appellant had no previous conviction. 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 4 years imprisonment with effect from 25/8/99 plus 2 strokes.
Dated and delivered at Nairobi this 22nd February, 2002.
V.V. PATEL JUDGE W.K. TUYOIT JUDGE