[2003] KEHC 919 (KLR)
The withdrawal of the appeal by the appellant terminated the appellate proceedings, thereby denying the prosecution the opportunity to seek enhancement of the conviction and sentence. The conviction under Section 296(1) of the Penal Code and the sentence of seven years imprisonment remain in force. However, in light...
Source-derived case information.
- Citation
- [2003] KEHC 919 (KLR)
- Parties
- Appellant: Nyae Ngao Nyondo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 355 of 1999
- Procedural Posture
- Criminal Appeal / Appeal Withdrawn Before Hearing
- Outcome
- Appeal withdrawn; conviction and sentence (except corporal punishment) affirmed.
- Legal Topics
- Robbery With Violence, Sentencing, Withdrawal of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyae Ngao Nyondo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Withdrawn Before Hearing
Legal Issues
- 1 Whether the conviction under Section 296(1) Penal Code was proper instead of Section 296(2).
- 2 Whether the sentence imposed was lawful and appropriate.
- 3 Effect of withdrawal of appeal on the prosecution's application for enhancement of sentence.
Ratio Decidendi
The withdrawal of the appeal by the appellant terminated the appellate proceedings, thereby denying the prosecution the opportunity to seek enhancement of the conviction and sentence. The conviction under Section 296(1) of the Penal Code and the sentence of seven years imprisonment remain in force. However, in light of the Criminal (Law Amendment) Act No.5 of 2003, the portion of the sentence imposing corporal punishment is set aside as it is no longer lawful. The court thus upholds the conviction and custodial sentence, but removes the corporal punishment component in compliance with current law.
Court Disposition
Appeal withdrawn; conviction and sentence (except corporal punishment) affirmed.
Orders
- Appeal marked as withdrawn.
- Conviction under Section 296(1) Penal Code remains in force.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT MOMBASACRIMINAL APPEAL NO.355 OF 1999 (Being an appeal from original conviction and Sentence in Criminal Case No.1913 of 1999 of the Chief Magistrate’s Court at Mombasa )
NYAE NGAO NYONDO .….…….……………………..……APPELLANT VERSUS REPUBLIC ……….…………………………………...….... RESPONDENT
J U D G M E NT
Nyae Ngao Nyondo had been charged with Robbery with violence contrary section 296(2) Penal Code but was convicted of Robbery with Violence under Section 296(1) Penal Code and was sentenced to serve 7 years imprisonment and five strokes of the cane. He filed this appeal against both conviction and sentence.
The learned state Counsel Miss Mwaniki filed a notice today 30th September 2003 seeking enhancement of sentence on grounds that the reduction of the charge of Robbery with Violence contrary to Section 296(2) Penal Code to Robbery with violence contrary to Section 296(1) by the trial magistrate was unjustified.
However, before this appeal could be heard, the appellant has decided to withdraw it altogether.
This move by the appellant has now denied the Attorney General the opportunity to apply for setting aside of the conviction under section 296(1) Penal Code and substitution of a conviction under S.296(2) Penal Code.
This appeal is now marked withdrawn. The conviction of the appellant under Section 296(1) Penal Code remains in force and the sentence of Seven (7) years imprisonment also remains in force. However corporal punishment, which has been outlawed by the Criminal (Law Amendment) Act No.5 of 2003, is set aside.
It is so ordered.
This 30th September 2003.
A.G.A. ETYANG JUDGE