Kimuri v Republic

Court of Appeal, at Nyeri October 24, 1990

Hancox CJ, Nyarangi JA, Cockar Ag JA

Criminal Appeal No 133 of 1989

(Appeal from a Judgment of the High Court of Kenya at Nyeri, Abdullah J

dated 22nd September 1989 in High Court Criminal Appeal No 96 of 1989)

Criminal Law – demanding with menaces – Penal Code (cap 63) section 302 - ingredients of the offence - whether offence is complete where the thing demanded is not given - whether a victim who yields to the demand is an accomplice.

The appellant, an Administration Police Officer, was convicted by a subordinate court for the offence of demanding property with menaces contrary to section 302 of the Penal Code (cap 63).

On appeal to the High Court, it was contended on behalf of the appellant that demand had not been proved and that the prosecution’s evidence disclosed the offence of corruption and not demanding with menaces. Further, that due consideration had not been given to the material contradictions between the evidence of the complainant, one prosecution witness whom he argued was an accomplice because he had been involved in negotiations as to the amount to be paid for release of the complainant.

Held:

1. The offence of demanding with menaces under section 302 of the Penal Code (cap 63) is complete when a demand is made. It is immaterial whether payment is made or not.

2. There must be a use of menace, threat or force capable of causing fear and only the person who demands with menaces commits the offence. The victim is not an accomplice to the offence even if he parts with the property.

Appeal dismissed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 302

Advocates

Mr Ngunjiri for the Appellant.