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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 92 of 2016· [2019] KECA 321 (KLR)

Siat Nassir Omar v Republic

Court of Appeal of Kenya
27 September 2019
2,753 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 confirmed robbery with violence is complete once stolen property is moved, but replaced the death sentence with 20 years' imprisonment.

What this practically means

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Executive summary

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This was a second appeal by Siat Nassir Omar against his conviction for three counts of robbery with violence and the death sentence, following dismissal of his first appeal by the High Court (Ogolla and Kamau, JJ) on 22 November 2013. As a second appeal under section 361(1)(a) of the Criminal Procedure Code, the Court of Appeal (Ouko, P, Karanja and Sichale, JJ.A) confined itself to points of law and expressed itself bound by contemporaneous findings of fact by the two lower courts. On conviction, the appellant argued the robbery was an aborted, incomplete offence because he was arrested before departing the scene, relying on authorities suggesting assailants must depart from the scene. The Court rejected this: the ingredients of robbery with violence are disjunctive, and the offence was complete once the appellant and his accomplices moved the truck; recovery before they got away did not make the offence incomplete. The Court found the identification evidence overwhelming, the appellant's mistaken identity defence unpersuasive, and dismissed the appeal against conviction. On the claim that the prosecution's written submissions contravened sections 213 and 310 of the Criminal Procedure Code, the Court found no basis to interfere. On sentence, the Court noted neither court below considered the appellant's mitigation, an omission attributable to the trials predating Muruatetu, and the State did not oppose review. The Court set aside the death sentence on all three counts and substituted 20 years imprisonment on each count, running concurrently, from the date of conviction. The judgment binds subordinate courts on the scope of second appeals, the disjunctive ingredients of section 296(2), and the completeness of the robbery offence.

Key legal issues

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01

Completeness of the offence of robbery with violence where the offender is arrested before departing the scene

Holding

The offence was complete because the appellant and his accomplices had actually moved the truck; departure from the scene is not an ingredient of the offence

Reasoning

The Court listed the ingredients of robbery with violence as set out in Johanna Ndung'u v. Republic and held the word 'or' disjunctive, so proof of any one ingredient sustains a conviction. Since the appellant and his accomplices actually moved the truck, the offence was complete; that the truck was recovered before they could get away does not render the offence incomplete or reducible to attempted robbery.

p. 3
02

Scope of a second appeal and deference to concurrent findings of fact

Holding

The Court's remit is confined to points of law under section 361(1)(a) of the Criminal Procedure Code and it will not interfere with contemporaneous findings of fact unless unsupported by evidence or based on misapprehension of the evidence

Reasoning

Relying on Karani vs. R, the Court restated that on a second appeal it considers only matters of law and cannot interfere with the decision of the superior court on facts unless the courts below considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong. The concurrent findings on identification and presence at the scene were strongly founded on the record.

p. 3
03

Whether the prosecution's written submissions after closure of the defence case violated sections 213 and 310 of the Criminal Procedure Code

Holding

No prejudice was established; the appeal on conviction was devoid of merit and dismissed

Reasoning

The Court found that both courts below fully considered the appellant's defence but the prosecution evidence was overwhelming and proved the case beyond reasonable doubt. The concurrent findings of the two courts were grounded in the record, and the appellant's defence of mistaken identity was not compelling given the broad-daylight identification and arrest while driving the stolen vehicle.

p. 3
04

Whether the death sentence should be reviewed in light of Muruatetu and the failure to consider mitigation

Holding

Neither the trial court nor the first appellate court considered mitigation; the death sentence was set aside and substituted with 20 years imprisonment on each count, running concurrently

Reasoning

The Court noted the Muruatetu holding applies mutatis mutandis to sections 296(2) and 297(2) of the Penal Code, as applied in Rajab Iddi Mubarak and William Okungu Kittiny. Given the omitted mitigation, the appellant's reform and remorse, and the State's non-opposition to review, the Court set aside the death sentences and imposed 20 years on each count, concurrent, while acknowledging the gravity of the offences.

p. 3

Legal principles established

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  • A second appeal to the Court of Appeal is confined to matters of law under section 361 of the Criminal Procedure Code, and the Court is bound by contemporaneous findings of fact by the two lower courts unless unsupported by the evidence or based on misapprehension of the evidence
  • Proof of any one of the ingredients of robbery with violence under section 296(2) suffices for a conviction, since the word 'or' is disjunctive
  • A robbery with violence is complete where the offenders have moved the stolen property; recovery of the property before they get away does not make the offence incomplete
  • The Muruatetu findings on the unconstitutionality of the mandatory death sentence apply to sentences under sections 296(2) and 297(2) of the Penal Code, permitting substitution with a lesser sentence

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Death sentence set aside on all three counts
  3. 3.Substituted sentence of 20 years imprisonment on each count from the date of conviction
  4. 4.Sentences to run concurrently
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A 154 of 2011
Jurisdiction invoked
Second appeal to the Court of Appeal under section 361(1)(a) 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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Cite this brief

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Cite this brief

Caselaw, "Siat Nassir Omar v Republic", Case Analysis (2019). Criminal Appeal No. 92 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/321/eng@2019-09-27

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