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|Case Number:||Criminal Appeal 71 of 2003|
|Parties:||Moses Gitonga Wairagu, Samwel Kinyua Kariuki & Charles Mwangi Gitau v Republic|
|Date Delivered:||21 Sep 2004|
|Court:||Court of Appeal at Nakuru|
|Judge(s):||Riaga Samuel Cornelius Omolo, Emmanuel Okello O'Kubasu, Erastus Mwaniki Githinji|
|Citation:||Wairagu & 2 others v Republic  eKLR|
|Parties Profile:||Individual v Government|
Crime - robbery with violence - conviction on a reduced charge of robbery - Penal Code (Cap 63) section 296(1), (2) - criminal practice and procedure - requirement that appeals by persons convicted for robbery with violence should be heard by two High Court judges - Criminal Procedure Code (Cap 75) section 359(1) - single judge erred in reducing charge of robbery with violence to simple robbery - judge ought to have asked another judge to sit with him.
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CRIMINAL APPEAL 71 OF 2003
MOSES GITONGA WAIRAGU
SAMWEL KINYUA KARIUKI
CHARLES MWANGI GITAU ………………......…..………………… APPELLANTS
REPUBLIC …..……………………………………………………….. RESPONDENT
JUDGMENT OF THE COURT
The magistrate had tried the appellants on a charge of robbery with violence under section 296 (2) of the Penal Code but in the judgment the appellants were convicted of the offence of simple robbery under section 296 (1) of the Penal Code. They appealed to High Court against the conviction and sentence and when admitting the appeal to hearing, Rimita, J, as he then was, directed that the appeals be heard by a single Judge. That was obviously because the appellants had been convicted of the lesser charge of simple robbery under section 296(1) of the Penal Code. The practice of the High Court, based on the provisions of section 359 (1) of the Criminal Procedure Code is that appeals by persons convicted under section 296 (2) are heard by two Judges. We think Mr Justice Visram was not justified, sitting all by himself, in changing the conviction from section 296 (1) to one under section 296 (2) of the Penal Code. If Visram, J, thought he was going to do so, he ought to have asked another Judge of the High Court to sit with him and then to warn the appellants of the possible consequences of their proceeding with the appeals. We accordingly allow the appeals, set aside the conviction and sentence of death and remit the appeals to the High Court for a rehearing by two judges. The appellants shall remain in prison and continue to serve the sentences imposed by the magistrate. Those shall be our orders.
Dated and delivered at Nakuru this 21st day of September, 2004.
R. S. C. OMOLO
JUDGE OF APPEAL
E. O. O’KUBASU
JUDGE OF APPEAL
E. M. GITHINJI
JUDGE OF APPEAL
I certify that this is a true copy of the original.