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Court of AppealAllowedCriminal Appeal (not numbered in judgment as supplied)· [2024] KECA 1092 (KLR)

Simon v Republic (Criminal Appeal 91 of 2015) [2024] KECA 1092 (KLR)

Court of Appeal
26 July 2024
WKW. KaranjaJMJamila MohammedAMA. O. Muchelule
3,458 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a death sentence for attempted robbery because demanding someone 'open the door' without any actual violence does not amount to a crime.

What this practically means

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Executive summary

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The appellant, Jack Mwangi Simon, was convicted by the Chief Magistrate's Court at Nanyuki of attempted robbery with violence contrary to Section 297(2) of the Penal Code and sentenced to death, his two co-accused having been acquitted. His first appeal to the High Court (H. I. Ong'udi and J. Ngaah JJ.) was dismissed on conviction and the sentence upheld. On second appeal to the Court of Appeal at Nyeri (W. Karanja, Jamila Mohammed and A. O. Muchelule, JJ.A), the appellant argued that the evidence showed only preparation, not an attempt; that the prosecution evidence was contradictory; that witness statements were supplied late contrary to Article 50(2)(c) and (j); and that the death sentence was harsh and excessive. The State maintained that all ingredients were proved. The Court, exercising its Section 361 Criminal Procedure Code jurisdiction limited to matters of law, set out the ingredients of attempted robbery with violence and the requirement of an act beyond mere intention, adopting the definition of assault in Morris Muteti v Republic. It found no evidence of an assault with intent to steal or of any use or threat of violence: the words 'open the door', without further adverse action, were insufficient. The prosecution therefore failed to prove its case beyond reasonable doubt. The Court allowed the appeal, quashed the conviction, set aside the death sentence, and ordered the appellant's release forthwith unless otherwise lawfully withheld. No costs order was made.

Key legal issues

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01

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

Holding

The Court found the ingredients were not proved. There was no evidence of an assault with intent to steal, nor of the use or threat of actual violence; the appellant's words ordering the complainant to 'open the door', absent any further adverse action, did not constitute assault with intent to steal.

Reasoning

The Court set out the statutory ingredients of Section 297(2) and the common-law requirement that some act towards execution of the purpose must be shown, drawing on Russell on Crime and Harris's Criminal Law. It adopted the definition of assault in Morris Muteti v Republic as a show of force raising apprehension in the victim's mind. On the evidence, the appellant was arrested armed in the complainant's compound, but no assault, use or threat of violence to obtain property was proved. The prosecution therefore failed to discharge its burden beyond reasonable doubt, and the concurrent findings below could not stand.

p. 6
02

Whether the death sentence should be interfered with

Holding

Having quashed the conviction, the Court set aside the death sentence as a consequence; it did not separately adjudicate the conflicting-sentencing-provisions argument under Sections 297(2) and 389 of the Penal Code or the Section 333(2) custody-time submission.

Reasoning

The sentence issue fell away because the conviction could not stand. The Court allowed the appeal on the sufficiency-of-evidence ground and ordered the appellant's release, without resolving the argument on the conflict between Sections 297(2) and 389 of the Penal Code relied on by counsel, nor the Muruatetu discretion point.

p. 6

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not disturb concurrent findings of fact unless they are based on no evidence, a misapprehension of the evidence, or wrong principles.
  • Mere words, without further adverse action, do not constitute the assault with intent to steal required for attempted robbery with violence under Section 297(2) of the Penal Code.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction quashed
  3. 3.Death sentence set aside
  4. 4.Appellant set at liberty forthwith unless otherwise lawfully withheld

Authorities

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Legislation

  • Penal CodeSection 297(2)
  • Penal CodeSection 297(1)
  • Penal CodeSection 389
  • Criminal Procedure CodeSection 361
  • Criminal Procedure CodeSection 215
  • Criminal Procedure CodeSection 169(1)
  • Criminal Procedure CodeSection 214
  • Criminal Procedure CodeSection 333(2)
  • Evidence ActSection 143
  • Constitution of Kenya, 2010Article 50(2)(c) and (j)

Cases cited (5)

  • Sammy Maina Karanja v Republic
    (2003) eKLR
  • Joseph Ndung'u Kagiri v Rep
    [2016] eKLR
  • Boniface Juma Khisa v Republic
    [2011] eKLR
  • Francis Karioko Muruatetu & Ano. v Republic
    [2021] eKLR
  • Morris Muteti v Republic
    [2014] eKLR
On appeal from
High Court of Kenya
null
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appellate jurisdiction limited to matters 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, "Simon v Republic (Criminal Appeal 91 of 2015) [2024] KECA 1092 (KLR)", Case Analysis (2024). Criminal Appeal (not numbered in judgment as supplied). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1092/eng@2024-07-26

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