[2001] KEHC 243 (KLR)
The court found that, although the complainants were robbed and in one case sustained minor injuries, the evidence did not support the more serious charge of robbery with violence. The injuries were either minor or non-existent, and the stolen items were promptly recovered. Both the prosecution and the defence...
Source-derived case information.
- Citation
- [2001] KEHC 243 (KLR)
- Parties
- Appellant: Stephen Onyango Awinda; Appellant: George Otieno Wamunda; Appellant: Ibrahim Osman Ibrahim; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1311 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- convictions for robbery with violence substituted with convictions for simple robbery under section 296(1) of the Penal Code; death sentences set aside; custodial sentences imposed.
- Legal Topics
- Robbery, Sentencing, Conviction Substitution, Section 296 1 Penal Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Onyango Awinda
Appellant
George Otieno Wamunda
Appellant
Ibrahim Osman Ibrahim
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the convictions for robbery with violence should be substituted with convictions for simple robbery under section 296(1) of the Penal Code.
- 2 Whether the sentences of death should be set aside and substituted with custodial sentences and corporal punishment.
- 3 Whether the injuries sustained by the complainants justified the original charges.
Ratio Decidendi
The court found that, although the complainants were robbed and in one case sustained minor injuries, the evidence did not support the more serious charge of robbery with violence. The injuries were either minor or non-existent, and the stolen items were promptly recovered. Both the prosecution and the defence agreed that the appropriate conviction should be for simple robbery under section 296(1) of the Penal Code. The court exercised its discretion to substitute the convictions accordingly, set aside the death sentences, and imposed custodial sentences of three and a half years imprisonment with corporal punishment, taking into account the appellants' status as first offenders and time...
Court Disposition
convictions for robbery with violence substituted with convictions for simple robbery under section 296(1) of the Penal Code; death sentences set aside; custodial sentences imposed.
Orders
- Convictions for robbery with violence set aside and substituted with convictions for robbery under section 296(1), Penal Code.
- Each appellant sentenced to 3.5 years imprisonment from 21st July, 1999, plus two strokes of the cane.
Full Case Text
Judgment text and source record
54 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO.1311 OF 1999
(From Original Conviction and Sentence in the Criminal Case
No.126 of 1999 of the Chief Magistrate’s Court at Kisumu).
STEPHEN ONYANGO AWINDA.……………...........……….APPELLANT
VERSUS
REPUBLIC…………….....……………..……….………..RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO.1312 OF 1999
(From Original Conviction and Sentence in the Criminal Case
No.126 of 1999 of the Chief Magistrate’s Court at Kisumu).
STEPHEN ONYANGO AWINDA.………….........………….APPELLANT
VERSUS
REPUBLIC…………………………..…………….....…..RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO.1316 OF 1999
(From Original Conviction and Sentence in the Criminal Case
No.126 of 1999 of the Chief Magistrate’s Court at Kisumu).
GEORGE OTIENO WAMUNDA………………......……….APPELLANT
VERSUS
REPUBLIC…………………………..………......………..RESPONDENT
J U D G M E N T
Criminal Appeal Nos. 1311, 1312 and 1316 of 1999 are consolidated.
Each of the three appellants now admits robbing the complainant as charged and has requested us to substitute the conviction for Robbery, contrary to section 296(1), P.C.
The evidence on record before the learned Magistrate was that the appellants robbed the complainant in his house at about 4 a.m. on 2/4/99 of his cassette and speaker valued at Sh.17,240/=.
We note that the complainant was injured on his scalp during the course of the robbery. However, the said injury was of a minor nature as it was classified as hard. Further the two items the complainant was robbed of were soon recovered.
We are of the view that the Police using the discretion should have charged the appellants contrary to section 296(1), P.C.
We find this a proper case for the substitution asked for. The learned State Counsel Miss Ambasi also agrees.
The appellants were first offenders and were in remand for about four months. There is no remission for robbery sentence. Order:
We substitute the conviction against each of the three appellants for Robbery, contrary to section 296(1), P.C. and set aside the death sentences. We sentence each appellant to 3½ years imprisonment with effect from 21st July, 1999 plus two strokes each.
Dated and delivered at Nairobi this 25th day of October, 2001.
G.P. MBITO
JUDGE
V. V. PATEL
JUDGE
REPUBLIC OF KENYA
IN THE HIGH COURT KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO.760 OF 2001
(From Original Conviction and Sentence in Criminal Case
No.342 of 2001 of the Chief Magistrate’s Court at Nairobi).
IBRAHIM OSMAN IBRAHIM…………..…...........………..APPELLANT
VERSUS
REPUBLIC………………………………..........………..RESPONDENT
J U D G M E N T
Criminal appeal Nos760 and 761 are consolidated.
Both appellants now admit that they robbed the complainant of the firearm ammunitions and a coat as charged. They have requested this court for the substitution of the convictions for Robbery, contrary to section 296(1), P.C.
The evidence was that the complainant, a police constable was on his way on 7/2/2001 with his pistol when he was robbed by the appellants as charged. Both appellants were arrested the same day and the pistol, ammunitions and the coat were soon recovered.
The complainant was not at all injured in the course of the robbery. Mr. Omwega, the learned State Counsel does not object to the substitution and rightly so.
Dated and delivered on 20th October 2001
Gideon P Ndito, J
Vinubhai Vithalbhal Patel. J