Morris Muteti v Republic [2014] KECA 612 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court analysed and re-evaluated the evidence on record as duty bound
- 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.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.Whether the charge sheet was fatally defective
Key legal issues
#Whether the High Court discharged its duty to analyse and re-evaluate the evidence on first appeal
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.
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.
Whether the ingredients of attempted robbery with violence under section 297(2) of the Penal Code were proved
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.
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.
Whether inconsistencies in the prosecution evidence were fatal
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed as lacking in merit
- 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
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
No costs order is recorded in the judgment.
Quotable passages
#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.
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.
In the premises the appeal under consideration is dismissed as lacking in merit. It is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Faza Holdings Limited T/A Down Town Hotel v John Kagonye Ngururi & another [2014] KEELC 434 (KLR)[2014] KEELC 434 (KLR)27 Mar 2014
Cite this brief
#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.