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Court of AppealDismissedCriminal Appeal No. 319 of 2008

Morris Muteti v Republic [2014] KECA 612 (KLR)

Court of Appeal of Kenya
4 April 2014
1,776 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed an attempted robbery conviction, clarifying that assault can be a mere show of force without physical contact.

What this practically means

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Executive summary

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The appellant, Morris Muteti, was convicted of attempted robbery with violence contrary to section 297(2) of the Penal Code and sentenced to death on 30 September 2005. His first appeal to the High Court at Nairobi (Ojwang & Warsame, JJ) was dismissed, that court even rejecting a concession of the appeal by the State. On second appeal to the Court of Appeal at Nairobi (Mwera, Mwilu & Musinga, JJA), the appellant raised five grounds, including that the ingredients of the offence were not met, that the High Court failed to analyse and re-evaluate the evidence, that the charge was defective, and that his defence was inadequately considered. Supplementary grounds were abandoned. The Court reiterated that a second appeal is confined to matters of law under section 361(1) of the Criminal Procedure Code, citing Njoroge v Republic, and that it is bound by concurrent findings of fact unless not founded on evidence. It held that the High Court adequately analysed the evidence. On the substance, the Court found the ingredients of the offence proved: the appellant was in the company of others, was armed with a panga, and smashed the complainant's vehicle window at night on a road obstructed with boulders. Relying on Black's Law Dictionary, the Court held that assault does not require physical harmful contact; a show of force creating a reasonable apprehension of imminent battery suffices. Inconsistencies as to the number of attackers were of minor import. The appeal was dismissed in its entirety.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court analysed and re-evaluated the evidence on record as duty bound
  2. 2.Whether the ingredients of attempted robbery with violence under section 297(2) of the Penal Code, namely assault and intent to steal, were proved
  3. 3.Whether the inconsistencies in the prosecution evidence, particularly as to the number of attackers and the sighting of the appellant, were fatal to the prosecution case
  4. 4.Whether the charge sheet was fatally defective

Key legal issues

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01

Whether the High Court discharged its duty to analyse and re-evaluate the evidence on first appeal

Holding

The High Court sufficiently analysed and evaluated the evidence, gave reasons for rejecting the State's concession, and no fault was found with its handling of the record.

Reasoning

The Court perused the High Court judgment and found that a substantial portion was devoted to analysis and evaluation of the evidence. The first appellate court gave reasons for its rejection of the appeal and was entitled to arrive at its own determination, including rejecting the State's concession. Grounds 2, 3 and 5 of the appeal were therefore rejected as without foundation.

p. 2
02

Whether the ingredients of attempted robbery with violence under section 297(2) of the Penal Code were proved

Holding

The ingredients were proved: the appellant was in company with others, was armed with a panga (a dangerous weapon), and the smashing of the vehicle window constituted assault with criminal intent.

Reasoning

The evidence established that the appellant smashed PW3's vehicle window with a panga at night on a road obstructed with boulders, which indicated criminal intent. Eyewitness evidence placed at least two other persons with the appellant, satisfying the 'in company' ingredient. The Court, relying on Black's Law Dictionary, held that a show of force raising apprehension of imminent battery suffices for assault even absent wounding. No evidence displaced the prosecution's account that the appellant was armed.

p. 3
03

Whether inconsistencies in the prosecution evidence were fatal

Holding

The inconsistencies as to whether there were three or four attackers, and which witness did not lose sight of the appellant, were of minor import and not fatal to the prosecution case.

Reasoning

Section 297(2) requires only that the offender be in company with one or more other persons; the precise number of attackers was immaterial. Further, the appellant himself admitted presence at the scene, albeit for different reasons. Such inconsistencies were therefore of minor effect and did not undermine the prosecution case.

p. 2

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to points of law and is bound by concurrent findings of fact of the lower courts unless those findings were not founded on evidence.
  • Assault under section 297(2) of the Penal Code does not require physical harmful contact; a show of force raising a reasonable apprehension of imminent battery suffices.
  • For the offence under section 297(2) to be established on the 'in company' limb, the presence of the accused and one or more other persons suffices; minor inconsistencies as to the exact number of attackers are not fatal.

Court orders

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  1. 1.The appeal is dismissed as lacking in merit
  2. 2.The conviction of the appellant for attempted robbery with violence contrary to section 297(2) of the Penal Code as upheld by the High Court stands

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Philomena Mbete Mwilu
P. M. MWILUJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 485 of 2005
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)

Relief refused

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The appellant's appeal against conviction for attempted robbery with violence

The Court found the High Court correctly appraised the evidence and that the ingredients of the offence were proved

p. 3

Costs

No costs order is recorded in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

On a second appeal, the Court of Appeal is only concerned with points of law. In such an appeal, the Court is bound by the concurrent finding of facts made by the lower courts unless they were not founded on evidence.
p. 2Scope of second appeals - points of law only
Assault is explained therein, not necessarily as a physical harmful contact but is enough that a show of force raising an apprehension in the mind of the victim is exhibited.
p. 3Definition of assault under section 297(2) of the Penal Code
In the premises the appeal under consideration is dismissed as lacking in merit. It is so ordered.
p. 3Final orders - dismissal of the appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Morris Muteti v Republic [2014] KECA 612 (KLR)", Case Analysis (2014). Criminal Appeal No. 319 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/612/eng@2014-04-04

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