Harun Mwambia Ndereba & another v Republic [2015] KECA 95 (KLR)
The bottom line
#Kenya's Court of Appeal replaced two death sentences for robbery with 15-year terms for grievous harm, because a dispute over Kshs. 20 was a fight, not a robbery.
What this practically means
#Executive summary
#Key legal issues
#Scope of a second appeal under section 361 of the Criminal Procedure Code
A second appeal is confined to points of law; the Court is bound by concurrent findings of fact unless they are based on no evidence or a misapprehension of the evidence.
Relying on section 361 of the Criminal Procedure Code and a line of authorities including Njoroge v Republic, M'Riungu v Republic, Chemagong v Republic and Kaingo v R, the Court reiterated that it will not interfere with concurrent findings of fact of the two lower courts unless demonstrably based on no evidence, a misapprehension of the evidence, or wrong principles. The question whether there was evidence on which the trial court could find as it did is a question of law.
Whether the facts disclosed robbery with violence or the lesser offence of grievous harm
The attack on the complainant arose from his refusal to pay Kshs. 20 demanded as an illegal 'toll', and the mobile phone fell from his pocket in the scuffle; the facts pointed to assault, not robbery with violence.
The complainant's own evidence was that the appellants demanded Kshs. 20 for beer and assaulted him when he refused; the mobile phone fell from his pocket during the scuffle and was picked by PW3, and the wallet was taken in the course of the assault. Following Moses Odhiambo Oduor & 2 Others v Republic, the Court held the lower courts should have found the appellants guilty of grievous harm, the injury being classified as maim, rather than robbery with violence under section 296(2).
Fitness of the 2nd appellant to stand trial
The claim of mental insanity was a matter of fact; both lower courts found the appellant fully took part in the trial and conducted his defence without any hitch, and the Court declined to disturb that finding.
On a second appeal the Court does not disturb concurrent findings of fact. Both the trial court and the first appellate court considered the insanity issue and found that the 2nd appellant fully participated in the trial and conducted his defence without any hitch. The Court accordingly declined to disturb that concurrent finding of fact.
Legal principles established
#- On a second appeal the Court of Appeal is confined to points of law and will not disturb concurrent findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles.
- Where violence arises from an altercation or disagreement rather than an intent to steal, the offence proved is the lesser cognate offence of grievous harm, not robbery with violence.
Court orders
#- 1.Conviction for robbery with violence contrary to section 296(2) of the Penal Code quashed in respect of each appellant
- 2.Sentences of death set aside
- 3.Each appellant found guilty of the offence of grievous harm contrary to section 234 of the Penal Code
- 4.Each appellant sentenced to 15 years imprisonment, running from the date of sentence, namely 29th July 2010
- On appeal from
- High Court of Kenya at Meru
- H.C. Cr. A. No. 143 of 2010
- Jurisdiction invoked
- Second appeal under section 361 of the Criminal Procedure Code, confined to points of law
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Samson Mworia v Republic[2018] KEHC 3475 (KLR)25 Sept 2018
- Republic v Aloise Ombere Onono[2016] KEHC 595 (KLR)14 Dec 2016applied
Cite this brief
#Cite this brief
Caselaw, "Harun Mwambia Ndereba & another v Republic [2015] KECA 95 (KLR)", Case Analysis (2015). Criminal Appeal No. 57 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/95/eng@2015-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.