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Court of AppealPartially AllowedCriminal Appeal 252 of 2004· [2008] KECA 12 (KLR)

Saitoti Lesorogol v Republic [2008] KECA 12 (KLR)

Court of Appeal of Kenya
3 October 2008
ROR.S.C. OmoloEOE.O. O'KubasuDAD.K.S. Aganyanya
2,128 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 held that robbery with violence requires proof of stealing; where that's absent, a lesser offence like grievous harm applies instead.

What this practically means

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Executive summary

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The appellant, Saitoti Lesorogol, was convicted with a co-accused (who died in custody, his appeal abating) of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death by the Principal Magistrate's Court at Nyahururu. The complainant had travelled with the two men to excavate for gemstones; she was cut on the neck with a panga, tied to a tree, and later found that the men were in possession of her belongings. The High Court at Nakuru dismissed the appellant's first appeal on 19th October 2004. On second and final appeal to the Court of Appeal at Nakuru, confined to matters of law under section 361(1) of the Criminal Procedure Code, counsel for the appellant contended that the trial was a nullity due to detention beyond 14 days, that the first appellate court failed to re-evaluate the evidence and consider the defence, and that no stealing occurred since the complainant only handed over a key. The State's counsel ultimately conceded that the evidence disclosed grievous harm rather than robbery. Applying its earlier decision in Ajode v R, which restated Johana Ndungu v Republic on the ingredients of section 296(2), the court held that robbery was not proved given the complainant's relationship with the accused and the location of her belongings. The conviction for robbery with violence and the death sentence were set aside, a conviction for grievous harm contrary to section 234 of the Penal Code was substituted, and, noting the appellant had been in custody since 27th July 2000, a sentence resulting in immediate release was imposed. No costs order was made. The judgment binds subordinate courts on the ingredients of robbery with violence.

Key legal issues

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01

Whether the ingredients of robbery with violence under section 296(2) of the Penal Code were proved

Holding

The court was not satisfied that the ingredients of robbery with violence were proved, because in view of the complainant's relationship with the appellant and the deceased it could not be said she was a victim of robbery, and her belongings were in a manyatta some distance from the place of assault.

Reasoning

Section 296(2) presupposes robbery as defined in section 295, which requires an act of stealing accompanied by actual or threatened violence. Here the complainant surrendered only a key; the belongings were some distance away and the parties had been together excavating gemstones, undermining the element of stealing. The court therefore found the offence of robbery with violence not proved and substituted a conviction for grievous harm under section 234.

p. 3
02

Whether a second appellate court may interfere with concurrent findings of the lower courts

Holding

The court re-evaluated the ingredients of the offence as a matter of law and concluded that both the trial court and the first appellate court had wrongly upheld a conviction for robbery with violence.

Reasoning

As a second and final appeal confined to matters of law under section 361(1) of the Criminal Procedure Code, the court examined whether the statutory ingredients of section 296(2) were established. Finding that stealing was not proved, it set aside the concurrent conviction for robbery with violence and death sentence, substituting a conviction for grievous harm contrary to section 234 of the Penal Code.

p. 4

Legal principles established

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  • On a second and final appeal, only matters of law fall for consideration under section 361(1) of the Criminal Procedure Code.
  • Robbery with violence under section 296(2) presupposes the essential ingredients of robbery under section 295, namely an act of stealing with the use of or threat to use actual violence at or immediately before or after; where no stealing is established, section 296(2) cannot be sustained.
  • Any one of the three sets of circumstances in section 296(2) - being armed with a dangerous weapon, being in company with others, or wounding/beating/using violence at or immediately before or after the robbery - if proved will constitute the offence.

Court orders

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  1. 1.The conviction for robbery with violence and the sentence of death are set aside
  2. 2.A conviction for the offence of grievous harm contrary to section 234 of the Penal Code is substituted
  3. 3.The appellant is sentenced to such period as will result in his immediate release from prison, having been in custody since 27th July, 2000

Authorities

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Legislation

  • Penal Code (Cap. 63)section 296(2)
  • Penal Code (Cap. 63)section 295
  • Penal Code (Cap. 63)section 322(2)
  • Penal Code (Cap. 63)section 234
  • Criminal Procedure Code (Cap. 75)section 361(1)

Cases cited (2)

  • AJODE V. R.
    [2004] 2 KLR 81
  • JOHANA NDUNGU V. REPUBLIC
    Criminal Appeal No. 116 of 1995 (unreported)
On appeal from
High Court of Kenya at Nakuru
H.C.CR.A. No. 104 of 2001
Jurisdiction invoked
Second and final appeal under section 361(1) of the Criminal Procedure Code (Cap. 75), confined to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Saitoti Lesorogol v Republic [2008] KECA 12 (KLR)", Case Analysis (2008). Criminal Appeal 252 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/12/eng@2008-10-03

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