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High CourtPartially AllowedHigh Court Criminal Appeal No. 36 of 2018 (consolidated with the other appeal arising from Nakuru CM Criminal Case No. 1879 of 2017)· [2020] KEHC 2913 (KLR)

Daniel Ngure & Another v Republic

High Court of Kenya
24 September 2020
JMJ. N. Mulwa
1,652 words in judgment
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The bottom line

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Even if you are convicted of robbery, the court can reduce a harsh sentence if the crime's value is low and the sentence is excessive.

What this practically means

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Executive summary

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The appellants were convicted by the Nakuru Chief Magistrate's Court (Hon. V. Wakumile, SPM) on 9 March 2018 of robbery with violence contrary to Section 296(1) of the Penal Code - the charge sheet itself misciting the subsection - and sentenced to ten years imprisonment. On appeal against both conviction and sentence, the High Court (J. N. Mulwa, J) considered three grounds: contradictory evidence, improper identification, and failure to prove the offence beyond reasonable doubt. The court held the prosecution evidence plain and largely uncontroverted, the appellants having failed to cross-examine the witnesses or point to any contradictions. Identification was found adequate: the complainant knew the appellants as neighbours and relatives by marriage, there was sufficient light from security lights, and he named his assailants when reporting to police. On the substantive offence, the court found the evidence did not support the aggravated offence under Section 296(2), as no dangerous weapon was used and no serious violence inflicted; the conviction was properly for simple robbery under Section 296(1), the trial court having lawfully convicted on a lesser charge under Section 179 of the Criminal Procedure Code. The court upheld the conviction but found the ten-year sentence excessive given the modest value of the stolen property (about Kshs.7,200/=) and the discretionary nature of the Section 296(1) sentence, and substituted three years imprisonment commencing from 9 March 2018. The appeal therefore partially succeeded on sentence only.

Key legal issues

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01

Whether the offence proved was robbery with violence under Section 296(2) or simple robbery under Section 296(1)

Holding

The evidence did not support the aggravated offence; conviction was properly for simple robbery under Section 296(1)

Reasoning

The court found no use of violence with a dangerous weapon and no personal violence upon the complainant beyond roughing up. The charge sheet wrongly cited Section 296(1) instead of 296(2), but the evidence supported simple robbery, and the trial court's conviction for robbery was properly based on the evidence.

p. 3
02

Whether identification of the appellants was proper

Holding

Identification was adequate as the complainant and appellants were known to each other and the complainant named his assailants when reporting

Reasoning

The complainant knew the appellants as neighbours, there was sufficient light from security lights, and he named them when reporting to police. The second appellant admitted knowing the complainant, being related by marriage. The trial magistrate's finding that identification was very tight was affirmed.

p. 3
03

Whether the ten-year sentence was excessive

Holding

The sentence was excessive; reduced to three years

Reasoning

The maximum for simple robbery is fourteen years and it is discretionary. Taking into account the Sentencing Policy and the modest value of stolen property (Kshs.7,200/=), the court found ten years excessive and substituted three years.

p. 3

Legal principles established

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  • Proof of any one of the three ingredients of robbery with violence is sufficient to establish the offence
  • A court may convict on a lesser charge than that charged where the evidence supports the lesser charge
  • The sentence for simple robbery under Section 296(1) is discretionary, not mandatory

Court orders

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  1. 1.Conviction for robbery under Section 296(1) of the Penal Code upheld
  2. 2.Ten years imprisonment set aside and substituted with three (3) years imprisonment commencing from the date of the trial court's judgment, 9/3/2018

Authorities

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Legislation

  • Penal CodeSection 296(1)
  • Penal CodeSection 296(2)
  • Penal CodeSection 295
  • Criminal Procedure CodeSection 179
  • Judiciary Sentencing Policy

Cases cited (5)

  • Oluoch Vs. Republic
    (1985)

    Setting out the three ingredients of robbery with violence

  • Douglas Mutunga Muthene Vs. Republic
    Criminal Appeal No. 51 of 2017 (2018) eKLR

    Conviction on a lesser charge under Section 179 of the Criminal Procedure Code

  • Isaac Wafula Vs. Republic
    (2017) eKLR

    Conviction on a lesser charge under Section 179 of the Criminal Procedure Code

  • Abdikadir Hussein Mberwa Vs. Republic
    (2016) eKLR

    Sentence under Section 296(1) is discretionary, not a minimum

  • John Nyaga Njuki & 4 others Vs. Republic
    (2002) eKLR

    Discrepancies in evidence that do not affect an otherwise proved case may be overlooked

On appeal from
Nakuru Chief Magistrate's Court
Criminal Case No. 1879 of 2017
Jurisdiction invoked
First appellate jurisdiction over conviction and sentence from the Chief Magistrate's Court (Criminal Procedure Code)

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, "Daniel Ngure & Another v Republic", Case Analysis (2020). High Court Criminal Appeal No. 36 of 2018 (consolidated with the other appeal arising from Nakuru CM Criminal Case No. 1879 of 2017). Source:

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