Amos Ondiso Oraro & 3 Others v Republic

imprisonment together with 2 strokes of corporal punishment; and 1 year imprisonment together with 1 stroke of corporal punishment respectively. 2. The prison sentences were to run concurrently. On their rst appeal to the superior court, that court held that sucient evidence had been tendered at their trial but purporting to follow the decision of this Court in Johana Ndungu v Republic, Cr A No 116 of 1995 (unreported), which is unrelated to the powers of that court, the rst appellate court appears to have substituted the rst count with that of robbery with violence contrary to section 296 (2) of the Penal Code and reinstated the charge of capital robbery in the second count and proceeded to sentence each of the appellants to suer death in the manner authorized by law. The conviction and sentence on the third count appears to have been uninterfered with. 2. On the night in question, the appellants had invaded the home of PW1 posing as police ocers in pursuit of thugs who had allegedly ran towards the servant’s quarters in that home. They then took hostage PW1, his wife, Elizabeth Yongo (PW2) and their house servant Charo Kazungu (PW3) whom they tied with ropes on their hands and legs. They then ransacked the servant’s quarters where they took a radio, two shirts, a wrist watch, one chain and a scout knife all valued at Kshs 2,500/=. Meanwhile, two of the appellants untied PW1 and took him to the main house where they took two pairs of safety boots, six bottles of whisky, a table clock, a wall clock, a television set, a video cassette player, a weighing machine and several other items of clothing. At the same time, the appellants forcibly took from PW2 her golden wedding ring from her nger and a necklace. Subsequently the appellants locked their hostages in the servant’s quarters from the outside and left the home of PW1 in his motor vehicle registration No KAB 252, make, Peugoet 504 saloon valued at Kshs 500,000/= after ensuring that they had punctured the tyres of the only other available motor vehicle at that home, Toyota in make. The former motor vehicle was later recovered at Miritini Estate in Changamwe, Mombasa Mainland. 3. According to PW1, PW2, and PW3 there was sucient light in the servant’s quarters from the wick lamp that was there and in PW1’s main house where there was a pressure lamp. Through the light from these sources, these witnesses were able to identify the appellants and in an identication parade conducted 15 days later, they respectively identied the appellants as the persons who had robbed them on the material night. In the course of police investigations, several items stolen from PW1’s home on the night of the robbery were recovered from the appellants which were subsequently identied by PW1 PW2 and PW3. It was on the basis of this evidence that the appellants were convicted by the trial court as is outlined at the beginning of this judgment. 4. The appellants’ complaint before us is that they were not correctly identied as the persons who in pretence of being police ocers in pursuit of thugs stormed the home of PW1 and committed the oences for which they were charged and tried before the Kili Senior Resident Magistrate’s Court. They also complain of the substitution of their conviction of simple robbery on all the three counts referred to above by the trial magistrate to that of capital robbery in the rst and second counts by the rst appellate court. 5. As concerns identication of the appellants as the perpetrators of the robbery at the home of PW1 on the night of 24th November, 1993 at about 8.30 pm, it would seem to us that the light in the servant’s quarters and in PW1’s main house, their proximity to their victims as briey outlined above and the duration of the robbery were factors favouring their correct identication by PW1, PW2 and PW3. Coupled with their identication by these witnesses at the identication parade conducted on 9th December, 1993 together with the recovery from their respective possession of some of the items stolen from the home of PW1 during the robbery in question which said items were identied by PW1, PW2 and PW3, we are in no doubt that the appellants were the robbers who committed the robbery in respect of which they were charged. https://new.kenyalaw.org/akn/ke/judgment/keca/1997/424/eng@1997-07-18 2

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6. The circumstances obtaining to what happened at the home of PW1 at the material time disclosed the oence of capital robbery contrary to section 296 (2) of the Penal Code on each of the three counts in respect of which they were charged and tried. Unfortunately, only the second count related to capital robbery in respect of which adequate evidence was led before the trial magistrate who reduced the charge in that count to one of simple robbery contrary to section 296 (1) of the Penal Code. As indicated earlier in this judgment, the rst appellate court aware of these circumstances attempted to substitute the appellants’ conviction in the rst and second counts to that of capital robbery from that of simple robbery. 7. The Criminal Procedure Code has only two clear sets of provisions relating to substituted convictions. These are set out in sections 179 to 191 and in section 361 (4) of the said Code. Any other provisions therein in this regard can only be the subject of strained interpretation with possible error of law. The latter section concerns the Court of Appeal on second appeals while the former sections are of general application in this regard. As was pointed out therefore by this Court in Raphael Oyondi Omuside v Republic, Cr A No 23 of 1991 (unreported), in altering the nding in an appeal against conviction and substituting therefor a conviction for an oence other than that charged, the High Court in its appellate jurisdiction can only act within the provisions of sections 179 to 191, both inclusive, of the Criminal Procedure Code and for the purpose of the present appeal, such alteration and substitution were only possible under section 179 of the Criminal Procedure Code which latter does not permit a substituted conviction of a major oence from a minor oence. It would appear to us therefore that the rst appellate court in the appeal before us had no jurisdiction to substitute the appellants’ conviction in the rst and second counts referred to earlier in this judgment from that of simple robbery to that of capital robbery. Section 361 (4) of the Criminal Procedure Code, however, is in the following terms: " 361. 8. Where a party to an appeal has been convicted of an oence and the subordinate court or the rst appellate court could lawfully have found him guilty of some other oence, and on the nding of the subordinate court or of the rst appellate court it appears to the Court of Appeal that the court must have been satised of facts which proved him guilty of that other oence, the Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the conviction entered by the subordinate court or by the rst appellate court a conviction of guilty of that other oence, and pass such sentence in substitution for the sentence passed by the subordinate court or by the rst appellate court as may be warranted in law for that other oence.” In the instant appeal, the trial court could have lawfully found the appellants guilty of capital robbery contrary to section 296 (2) of the Penal Code in the second count laid against them and indeed that Court was satised of facts which proved the appellants guilty of that oence. In the result, while setting aside the rst appellate court’s purported substituted conviction of the appellants on capital robbery in the rst and second counts as are set out at the beginning of this judgment, we, nonetheless, substitute their conviction by the trial court of simple robbery contrary to section 296 (1) of the Penal Code in the second count with that of capital robbery contrary to section 296 (2) of the same Code for which they were charged in that Court and substitute their respective sentence of 3 years’ imprisonment together with 2 strokes of corporal punishment with that of death in the manner authorized by law. To this end the appellants’ appeal fails. DATED AND DELIVERED AT MOMBASA THIS 18TH DAY OF JULY, 1997. https://new.kenyalaw.org/akn/ke/judgment/keca/1997/424/eng@1997-07-18 3

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J. E. GICHERU .............................. JUDGE OF APPEAL A. M. AKIWUMI ............................. JUDGE OF APPEAL G. S. PALL ........................... JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/1997/424/eng@1997-07-18 4

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