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Court of AppealPartially AllowedCriminal Appeal No. 57 of 2013· [2015] KECA 95 (KLR)

Harun Mwambia Ndereba & another v Republic [2015] KECA 95 (KLR)

Court of Appeal of Kenya
17 December 2015
2,431 words in judgment
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The bottom line

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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

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Executive summary

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The two appellants were convicted of robbery with violence contrary to section 296(2) of the Penal Code by the Principal Magistrate's Court at Chuka and sentenced to death on 29th July 2010. Their first appeals were dismissed by the High Court at Meru (Lesiit and Makau, JJ) on 22nd November 2012. On second appeal, the Court of Appeal (Nambuye, Kiage and Sichale, JJ.A) reiterated that a second appeal is confined to points of law under section 361 of the Criminal Procedure Code and that the Court is bound by concurrent findings of fact unless based on no evidence or a misapprehension of the evidence. The Court held that the claim that the 2nd appellant was of unsound mind was a finding of fact which it declined to disturb, both lower courts having found that he fully participated in the trial. On the merits, the Court found that the assault on the complainant arose from his refusal to pay Kshs. 20 demanded as an illegal 'toll', that the mobile phone fell from his pocket in the course of the scuffle, and that the facts disclosed assault rather than an intent to steal. Following Moses Odhiambo Oduor & 2 Others v Republic, the Court quashed the convictions for robbery with violence, set aside the sentences of death, convicted each appellant of grievous harm contrary to section 234 of the Penal Code, and sentenced each to 15 years imprisonment running from 29th July 2010. The appeal therefore succeeded only partially: the convictions and death sentences were set aside but substituted convictions were entered.

Key legal issues

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01

Scope of a second appeal under section 361 of the Criminal Procedure Code

Holding

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.

Reasoning

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.

p. 3
02

Whether the facts disclosed robbery with violence or the lesser offence of grievous harm

Holding

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.

Reasoning

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).

p. 4
03

Fitness of the 2nd appellant to stand trial

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Conviction for robbery with violence contrary to section 296(2) of the Penal Code quashed in respect of each appellant
  2. 2.Sentences of death set aside
  3. 3.Each appellant found guilty of the offence of grievous harm contrary to section 234 of the Penal Code
  4. 4.Each appellant sentenced to 15 years imprisonment, running from the date of sentence, namely 29th July 2010

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 234
  • Criminal Procedure Codesection 361

Cases cited (9)

  • Njoroge -vs- Republic
    (1982) KLR 388
  • M'Riungu -vs- Republic
    (1983) KLR 455
  • Chemagong v. Republic
    [1984] KLR 61
  • Kiarie v. Republic
    [1964] KLR 739
  • Martin v. Glyneed Distributors Limited (T/A MBS Fastenings
    The Times of March 30, 1983
  • George Kamau Gatogo v Republic- Civil Appeal No. 21 of 2011
  • Kaingo Vs. R
    [1982] KLR 213
  • REUBEN KARARI C/o KARANJA VS. R
    [1956] 17 EACA 146
  • Moses Odhiambo Oduor & 2 Others v Republic
    Kisumu Criminal Appeal No. 348 of 2008
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

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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, "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.