[2001] KEHC 235 (KLR)
The court found that the evidence on record did not prove the ingredients necessary for a conviction under section 296(2) of the Penal Code for robbery with violence. Both the appellant and the respondent agreed that the charge should be substituted to one under section 296(1), which carries a lesser penalty. The...
Source-derived case information.
- Citation
- [2001] KEHC 235 (KLR)
- Parties
- Appellant: Patrick Butlai Murenga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 8 of 1998
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; conviction substituted; sentence varied.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Robbery With Violence, Sentencing, Substitution of Charge, Corporal Punishment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Butlai Murenga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for robbery with violence under section 296(2) of the Penal Code was proper given the evidence adduced.
- 2 Whether the sentence of death was appropriate in the circumstances.
- 3 What is the appropriate sentence upon substitution of the charge to section 296(1) of the Penal Code.
Ratio Decidendi
The court found that the evidence on record did not prove the ingredients necessary for a conviction under section 296(2) of the Penal Code for robbery with violence. Both the appellant and the respondent agreed that the charge should be substituted to one under section 296(1), which carries a lesser penalty. The court substituted the conviction accordingly. Considering the appellant was a first offender and had already served over four years in custody, the court held that this period constituted sufficient punishment for the offence. However, the law required the imposition of corporal punishment and police supervision. The court therefore sentenced the appellant to imprisonment for the...
Court Disposition
Appeal allowed in part; conviction substituted; sentence varied.
Orders
- The conviction under section 296(2) of the Penal Code is substituted with a conviction under section 296(1) of the Penal Code.
- The sentence of death is set aside and replaced with imprisonment for the period already served.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
HIGH COURT CRIMINAL APPEAL NO. 8 OF 1998
(From Original Convictin(s and sentence(s) in criminal case no. 1998 of
1997 of The Chief Magistrate’s Court at Nairobi)
PATIRCK BUTLAI MURENGA…………………………APPELLANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
J U D G M E N T
These appellant was convicted of the offence of Robbery with violence c/s 296 (2) of the penal code and sentenced to death. He appealed. At the hearing of his appeal, the appellant agreed to the proposal by the learned counsel for the republic that he charge be substituted to fall under Section 296(1) of the Penal Code. We have also gone through the record and agree, with respect, that the appellant ought to have been charged with robbery c/s 296(1) of the Penal Code as the ingredients set out in the charge sheet were not proved by way of evidence before the learned trial magistrate. He charge is accordingly substituted and a verdict of guilty entered against the appellant under section 296(1) of the Penal Code aforesaid.
The foregoing being the case, the only issue now before us is that of sentence. The appellant was said to be a first offender. Since his arrest on 3rd August, 1997, he has remained in custody. This adds up to a period of 4 years and 4½ months. We consider this to be sufficient punishment in view of the circumstances of the offence. However, Corporal punishment and police supervision are mandatory provisions under sections 296(1) and 344 of the Criminal Procedure Code.
Accordingly, we allow the appeal by substituting the sentence of death and in place thereof a sentence of imprisonment equal to the period already served by the appellant. The appellant shall suffer (2) two strokes of the cane and thereafter released unless otherwise lawfully held. After his release, the appellant shall be under police supervision for a period of (5) five years.
Orders accordingly.
Dated and delivered at Nairobi this 20th day of December, 2001
MBOGHOLI MSAGHA
JUDGE