[2001] KEHC 237 (KLR)
The court found that although the appellant participated in the robbery, there was no evidence that the complainant was injured or that violence was used beyond the act of robbery itself. The absence of injury and the appellant's lack of previous convictions justified substituting the conviction from robbery with...
Source-derived case information.
- Citation
- [2001] KEHC 237 (KLR)
- Parties
- Appellant: Richard Kungu Kinyanjui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 711 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction substituted; sentence varied
- Judges
- GP Mbito, VV Patel
- Legal Topics
- Robbery With Violence, Sentencing, Conviction Substitution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Kungu Kinyanjui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for robbery with violence under section 296(2) should be substituted with a conviction for robbery under section 296(1).
- 2 Whether the sentence of death should be set aside and an appropriate sentence imposed.
Ratio Decidendi
The court found that although the appellant participated in the robbery, there was no evidence that the complainant was injured or that violence was used beyond the act of robbery itself. The absence of injury and the appellant's lack of previous convictions justified substituting the conviction from robbery with violence under section 296(2) to simple robbery under section 296(1) of the Penal Code. Consequently, the death sentence was set aside and replaced with a custodial sentence of four years imprisonment and two strokes, effective from the date of the original sentence.
Court Disposition
conviction substituted; sentence varied
Orders
- The conviction for robbery with violence under section 296(2) is substituted with a conviction for robbery under section 296(1) of the Penal Code.
- The death sentence is set aside.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO.711 OF 1999
(From Original Conviction and Sentence in the Case No. 2419 of 1998 of the Senior Resident Magistrate’s Court at Nairobi)
RICHARD KUNGU KINYANJUI…………………………APPELLANT
VERSUS
REPUBLIC………………………………………….……..RESPONDENT
J U D G M E N T
The appellant was charged for Robbery with Violence, contrary to section 296(2) i.e. with an alternative count of handling stolen property, contrary to section 322(2), P.C. He was convicted on the main count of the capital robbery and sentenced to death on 13th July, 1999. The appellant has now admitted that he, jointly with others, 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 the appellant, jointly with two others, robbed the complainant on 9th October, 1998, of his motor vehicle, Toyota Hilax pick up, ten pieces of iron bar and cash Sh.800/=.
We note that on 10/10/1998, i.e. a day after, the appellant was arrested and the motor vehicle was recovered from him. We further note that the complainant was not at all injured in the course of the robbery and find that this is a proper case for the substitution. The learned State counsel Miss Ambasi has no objection. The appellant had no previous conviction and was in remand for about nine months before the trial so simple as this ended. There is no remission for robbery sentence.
ORDER: We substitute the conviction against the appellant for Robbery, contrary to section 296(1), P.C. and set aside the death sentence. We sentence the appellant to four years imprisonment with effect from 13th July, 1999 plus two strokes.
Dated and delivered at Nairobi this 25th October, 2001.
G.P. MBITO
JUDGE
V.V. PATEL
JUDGE