KIMURI vs REPUBLIC [1990] KECA 40 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that demanding money with threats is a crime the moment the demand is made, even if the victim pays.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the offence of demanding property with menaces under section 302 of the Penal Code was proved, given that payment of Kshs.60 was in fact made
- 2.Whether the evidence of Wanjuki (PW 3) should have been treated as that of an accomplice requiring corroboration
- 3.Whether material contradictions in the prosecution evidence undermined the safety of the conviction
Key legal issues
#Completion of the offence of demanding with menaces
The offence is complete when the demand is made; subsequent payment and any corrupt element do not convert or negate the charge.
Section 302 of the Penal Code defines the offence as demanding valuable property with menaces or force with intent to steal. The court held the demand accompanied by menaces was for money and was made between 4.30 pm and 7.30 pm, before Wanjuki intervened and before the payment of Kshs.60. Further demands were made in continuation of the same incident through Wanjuki as intermediary. The prosecution had the option which offence to charge.
Accomplice status of the victim's helper and corroboration
Wanjuki (PW 3), who negotiated and paid money to secure the complainant's release, was not an accomplice, so his evidence needed no corroboration.
Unlike corruption, where both giver and receiver offend, in demanding with menaces the victim can neither be charged nor convicted. Wanjuki acted merely to help his friend the complainant and was not acting in concert with or in the interests of the appellant. Therefore the learned judge rightly found his evidence did not require corroboration, and the submission that failure to seek corroboration was a misdirection failed.
Material contradictions in prosecution evidence
Contradictions surrounding the passing of Kshs.60 were minor, did not affect the credibility of the witness, and the courts below made concurrent findings that they were not substantial.
Counsel for the appellant relied on contradictions between the complainant's evidence and that of Wanjuki regarding the payment of Kshs.60. The court examined the contradictions, found them of a minor nature that did not affect credibility, and deferred to the concurrent findings of the trial magistrate and the High Court, consistent with its restraint on second appeal from concurrent findings of fact.
Legal principles established
#- The offence of demanding property with menaces is complete upon the demand being made; whether payment is made or not is immaterial.
- In the offence of demanding with menaces only the person who makes the demand commits the offence; the victim is not an accomplice even if he parts with property.
- A second appellate court will not depart from concurrent findings of fact of the two lower courts without clear and compelling reasons.
Court orders
#- 1.The appeal is dismissed and the conviction for demanding property with menaces contrary to section 302 of the Penal Code is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nyeri
- Jurisdiction invoked
- Second appellate jurisdiction under the Criminal Procedure Code over an appeal from the High Court sitting on first appeal from the resident magistrate
Relief refused
#Setting aside the conviction on the ground that the facts disclosed corruption rather than demanding with menaces
Whether the facts also amounted to corruption was immaterial; the offence of demanding with menaces was complete once the demand was made, before any payment or element of corruption arose
Treating Wanjuki (PW 3) as an accomplice whose evidence required corroboration
He was acting merely to help his friend the complainant and not in concert with or in the interests of the appellant
Costs
No order as to costs recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is clear from the definition that the offence is complete when a demand is made. Whether payment is made or not is immaterial.
Finally 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.
We are satisfied that this is a safe conviction. The appeal is accordingly dismissed.
Issues in the judgment
#The judgment contains large duplicated passages - the narrative of the demands and the accomplice discussion appears twice, and the complainant's witness is inconsistently numbered (PW 3 and once PW 4 for Wanjuki).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KIMURI vs REPUBLIC [1990] KECA 40 (KLR)", Case Analysis (1990). Criminal Appeal No. 133 of 1989. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/40/eng@1990-05-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.