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Court of AppealDismissedCriminal Appeal 175 & 176 of 2004· [2006] KECA 313 (KLR)

Ndirangu Nderitu Mureithi & Another v Republic

Court of Appeal of Kenya
3 March 2006
ROR. S. C. OmoloEOE. O. O'KubasuEGE. M. Githinji
2,185 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that attempted robbery with violence is a distinct offence with its own charge, and dismissed both appeals against the death sentence.

What this practically means

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Executive summary

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The two appellants were convicted by a Senior Resident Magistrate of attempted robbery with violence contrary to section 297(2) of the Penal Code and sentenced to death; the second appellant faced additional firearm and ammunition counts on which he was discharged under section 35(1) of the Penal Code. Their first appeals to the High Court at Nakuru were dismissed on 13th July 2004, and they appealed to the Court of Appeal at Nakuru on matters of law only, as permitted by section 361(1) of the Criminal Procedure Code. Counsel for the first appellant argued there was no valid charge because section 297(2) merely prescribes a penalty, and that the appellants were denied a fair hearing on first appeal. The court rejected both contentions, holding that sections 296(1)/297(1) and 296(2)/297(2) create separate and distinct offences each with its own penalty, unlike murder and manslaughter where definition and penalty sit in different sections. It affirmed that section 382 curative provisions cannot rescue an incurably defective charge, but found the charge here valid. On the second appellant's appeal, the court held that although he was not identified at the scene, the circumstances - flight from the scene brandishing the snatched gun into the hands of police - supported the inference of guilt. Both convictions were found inevitable and the appeals were dismissed in their entirety on 3rd March 2006. No costs order was made.

Key legal issues

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01

Validity of a charge under section 297(2) of the Penal Code

Holding

Section 297(2) defines the offence of attempted robbery with violence and is not merely a penalty provision; the charge was valid

Reasoning

The court distinguished murder and manslaughter, where definition and penalty sit in separate sections, from robbery and attempted robbery, where subsections (1) and (2) create distinct offences. A charge under section 297(2) must be laid under that section alone.

p. 2
02

Right to a fair hearing on first appeal

Holding

No denial of fair hearing where appellants were present, filed written submissions and replied to the State's address

Reasoning

The record showed both appellants addressed the High Court in writing and orally after the prosecutor's submissions, satisfying section 77(2)(c) of the Constitution.

p. 3
03

Conviction of second appellant absent identification at the scene

Holding

Circumstantial inference that he snatched the gun and fled the scene was open to the courts below

Reasoning

A gun was snatched during the attempted robbery; shortly afterwards the second appellant was arrested nearby brandishing a gun at a pursuing crowd, with no other robbery known in the area at the time.

p. 3

Legal principles established

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  • On a second appeal the Court of Appeal deals only with matters of law
  • Sections 296(2) and 297(2) of the Penal Code create separate and distinct offences from sections 296(1) and 297(1), each with its own penalty
  • Section 382 curative provisions cannot cure an incurably defective charge because a conviction requires a defined offence with prescribed penalty in written law

Court orders

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  1. 1.The two appeals be and are hereby dismissed

Authorities

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Legislation

  • Penal Codesection 297(2)
  • Penal Codesection 297(1)
  • Penal Codesection 296(1)
  • Penal Codesection 296(2)
  • Penal Codesection 203
  • Penal Codesection 204
  • Penal Codesection 202
  • Penal Codesection 205
  • Penal Codesection 35(1)
  • Firearms Act, Chapter 114section 4(1)
  • Criminal Procedure Codesection 361(1)
  • Criminal Procedure Codesection 382
  • Constitution of Kenyasection 77(8)
  • Constitution of Kenyasection 77(2)(c)
On appeal from
High Court of Kenya at Nakuru
H.C.CR.A No 203 of 2000
Jurisdiction invoked
Second appeal under section 361(1) of the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ndirangu Nderitu Mureithi & Another v Republic", Case Analysis (2006). Criminal Appeal 175 & 176 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/313/eng@2006-03-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.