David W Ngeretha v Republic

High Court, at Nyeri January 22, 1992

Tunoi J

Criminal Appeals Nos 177 & 178 of 1991(consolidated)

(From original Criminal Case No 884 of 1989 of Principal Magistrate’s  Court at Nyeri (Njuguna Kimani R M ))

Criminal Law – demanding money with menaces contrary to section 302 of the Penal Code – where one is accosted and told to give out the money or be charged – whether this amounts to demanding money with menaces.

The two appellants, police constables at Nyeri, were after trial convicted of demanding money with menaces contrary to section 302 of the Penal Code, in that on 26/1/1989 in Majengo village in Nyeri district, they demanded money with menaces, namely Shs 100 from one Nicholas Kibui so that he might not be arrested and charged with possession of changaa.

The complainant alleged that they told him unless he gave them the money, they would arrest him. He told them he had no money. They advised him to go home, look for it and meet them later. It was contended on behalf of prosecution that a trap was set up and Shs 100 was recovered on the trouser of the appellant. They were convicted and hence the appeal.

Held:

1. There was intent to steal the money once there was intent to take the money without the consent of the complainant, the person to whom the demand was made.

2. By demanding Shs 100 the only intention by the appellants was to steal the money.

3. The appellants manhandled the complainant and handcuffed him, all these using force and some violence so as to make him accede unwillingly to the demand.

Appeal rejected.

Cases

Oketch v Republic [1968] EA 508

Statutes

Penal Code (cap 63) section 302