[2002] KEHC 438 (KLR)
The court found that although the complainant did not identify the appellant during the robbery, the recovery of the stolen radio from the appellant only five days after the incident was sufficient to invoke the doctrine of recent possession. This doctrine, coupled with the evidence of actual violence used against...
Source-derived case information.
- Citation
- [2002] KEHC 438 (KLR)
- Parties
- Appellant: Daniel G. Wanderi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 285 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction substituted; sentence varied
- Judges
- A Mbogholi-Msagha, GP Mbito
- Legal Topics
- Robbery With Violence, Recent Possession Doctrine, Sentencing Principles, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel G. Wanderi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the doctrine of recent possession applies to the appellant in relation to the stolen property.
- 2 Whether the conviction under section 296(2) of the Penal Code was proper or should be substituted with a conviction under section 296(1).
- 3 Whether the sentence imposed was appropriate in the circumstances.
Ratio Decidendi
The court found that although the complainant did not identify the appellant during the robbery, the recovery of the stolen radio from the appellant only five days after the incident was sufficient to invoke the doctrine of recent possession. This doctrine, coupled with the evidence of actual violence used against the complainant, justified a conviction for robbery. However, since the specific perpetrator of the violence could not be identified and the injuries were not disabling, the court held that a conviction under section 296(1) of the Penal Code was more appropriate than under section 296(2). The court substituted the conviction accordingly and imposed a sentence of ten years'...
Court Disposition
conviction substituted; sentence varied
Orders
- Conviction under section 296(2) of the Penal Code substituted with conviction under section 296(1).
- Appellant to serve ten years' imprisonment.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
APPELLATE SIDE
CRIMINAL APPEAL NO. 285 OF 1999
From Original Conviction(s) and Sentence(s) in Criminal Case No. 2993 of
1996 of the Resident Magistrate’s Court at Naivasha(I.W. Gitari)
PATRICK MWANGI………...……………………………….…APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 285 OF 1999
From Original Conviction(s) and Sentence(s) in Criminal Case No. 2993 of
1996 of the Resident Magistrate’s Court at Naivasha(I.W. Gitari)
DANIEL G. WANDERI……....………………….…………….APPELLANT
VERSUS
REPUBLIC………………………………….……………….RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 287 OF 1999
From Original Conviction(s) and Sentence(s) in Criminal Case No. 2993 of
1996 of the Resident Magistrate’s Court at Naivasha(I.W. Gitari)
JAMES MWANGI KAMAU………...………………….………APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 285 OF 1999
From Original Conviction(s) and Sentence(s) in Criminal Case No. 2993 of
1996 of the Resident Magistrate’s Court at Naivasha(I.W. Gitari)
PETER MAINA NJENGA…………....………………………..APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
J U D G M E N T
These appeals were consolidated but all the other appellants have since died except the appellant in CRA No. 286 of 1999 Daniel G. Wanderi. The appellant was convicted of the offence of offence of robbery with violence and sentenced to death. He appealed.
The complainant was robbed of personal Properties on 3rd September, 1996. Five days later, that is, on 8th September 1996 the appellant and others were found listening to a radio which was later identified by the complainant to be among the stolen properties. This was only five days after the robbery.
During the robbery the complainant did not identify the robbers. However, the recovery of the radio only five days from the date of the robbery was close enough to apply the doctrine of recent possession.
Actual violence was used on the complainant and the P3 form produced described the injury as “harm”. The complainant was attacked by many people and it may not be easy under such circumstances to identify the person who inflicted the injuries. We also note that the injuries were not of a disabling nature. We are inclined therefore to substitute the conviction under section 296(2) to that under section 296(1) of the Penal Code. Accordingly the conviction is now substituted.
The appellant has chosen a life in crime. This is the fifth appeal we are dealing with in respect of the same person. We believe a deterent sentence is called for. The appellant shall serve 10(ten) years imprisonment together with (4) four strokes of the cane. He shall be subject to police supervision for five years after completion of the prison term. Orders accordingly.
Dated and delivered this 16th day of July, 2002.
MBOGHOLI MSAGHA
JUDGE
G. MBITO
JUDGE