Amrittal Bhagwanji Shah, Samuel Elikana Ondari Bosire, Effie Owuor
Andrew Ndambuki Muthike v Republic  eKLR
Andrew Ndambuki Muthike v Republic
Court of Appeal, at Nyeri
December 13, 2002
Shah, Bosire & Owuor JJ A
Criminal Appeal No 108 of 2000
(Appeal from a judgment of the High Court at Nyeri, Juma & Mulwa JJ dated June 6, 2000 in High Court Criminal Appeal No 250 of 1998)
Criminal Law – robbery with violence – ingredients of the offence – Penal Code (cap 63) section 296–– facts disclosing that accused person robbed a shop owner of property while in the company of other persons – trial court urged that there was no violence used and no proof of injury - trial court reducing charge to simple robbery and sentencing accused–– whether facts disclosing offence of robbery with violence – whether sentence legal.
Sentencing–– legality of sentence – charge of robbery with violence under the Penal Code (cap 63) section 296(2) reduced to simple robbery under section 296(2)–– facts disclosing that accused robbed his victim while in the company of other robbers – whether robbery with violence proved – whether sentence for simple robbery legal – whether sentence of death the proper sentence.
The appellant was convicted in a magistrate’s court on a charge that he, jointly with other persons, robbed one Jamlick of cash and that before or immediately after the time of such robbery, he used actual violence to the said Jamlick.
The evidence which the court accepted was that on the material night, Jamlick was in his shop with his wife when the door was broken by about nine intruders who beat him up with clubs and took money and property from him. Jamlick and his wife testified that the appellant was known to them and he was among the intruders. Jamlick stated that he had later identified the appellant in an identification parade.
The trial magistrate reduced the charge from robbery with violence to simple robbery under section 296(1) of the Penal Code (cap 63) and proceeded to convict and sentence the appellant on that lesser charge. The appellant nevertheless appealed against the decision to the High Court.
The High Court found that the facts disclosed the offence of robbery with violence contrary to section 296(2) of the Penal Code and dismissed the appeal. The sentence of imprisonment was declared illegal and a sentence of death was substituted.
The appellant filed this second appeal in which his advocate stated that the identification parade forms had not been produced in court and that he had not been positively identified as one of the alleged robbers. It was further argued that there had been no violence used during the said robbery and that the trial magistrate was right in reducing the offence to simple robbery.
1. Whilst there was some justification for the complaint that the prosecution had failed to produce evidence of the identification parade, the failure to call the officer who carried out the parade was not fatal to the prosecution’s case as the other evidence on record was sufficient to support the appellant’s conviction.
2. The two lower courts found that the appellant was in the company of the robbers and that he was known to Jamlick and his wife. There was no proper basis on which this Court could fault the lower courts on that finding. This was a second appeal where only issues of law could be dealt with.
3. While the issue of identification is an issue of mixed law and fact, this Court could not discern any error on the part of the two lower courts on that issue which could warrant it to rule otherwise.
4. There may have been no violence used during the robbery but section 296(2) of the Penal Code envisages that when the robbery is committed by more than one person one of the ingredients of the offence of robbery with violence under that subsection is satisfied. That being the case, the reduction of the charge to simple robbery by the trial magistrate was a misdirection and the sentence meted out by the High Court was the legal one.
No cases referred to.
Penal Code (cap 63) sections 251, 296(2)
Mr Kigotho for the Appellant.