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Court of AppealDismissedCriminal Appeal No. 133 of 1989· [1990] KECA 40 (KLR)

KIMURI vs REPUBLIC [1990] KECA 40 (KLR)

Court of Appeal
24 October 1990
HAHancoxNYNyarangiCOCockar
2,451 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellant, an Administrative Policeman, was convicted by the resident magistrate at Nyahururu of demanding property with menaces contrary to section 302 of the Penal Code after arresting a hawker and demanding money for his release. The High Court at Nyeri dismissed his first appeal, and he appealed to the Court of Appeal at Nyeri on grounds that the facts disclosed corruption rather than demanding, that Wanjuki (PW 3), who negotiated and paid Kshs.60 to secure the complainant's release, was an accomplice whose evidence required corroboration, and that material contradictions undermined the conviction. The Court of Appeal, in a unanimous judgment delivered by Hancox CJ, Nyarangi JA and Cockar Ag JA, dismissed the appeal. It held that the offence under section 302 is complete the moment a demand with menaces is made, whether or not payment follows, and that the demands were completed before Wanjuki intervened, so any element of corruption was immaterial to the charge laid. It further held that only the person making the demand commits the offence; the victim, and one assisting the victim such as Wanjuki, are not accomplices, so no corroboration was required. The contradictions complained of were minor and did not affect credibility, and the court would not disturb concurrent findings of fact of the two lower courts absent clear and compelling reasons. The conviction was pronounced safe and the second appeal was dismissed.

Key legal issues

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01

Completion of the offence of demanding with menaces

Holding

The offence is complete when the demand is made; subsequent payment and any corrupt element do not convert or negate the charge.

Reasoning

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.

p. 3
02

Accomplice status of the victim's helper and corroboration

Holding

Wanjuki (PW 3), who negotiated and paid money to secure the complainant's release, was not an accomplice, so his evidence needed no corroboration.

Reasoning

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.

p. 3
03

Material contradictions in prosecution evidence

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed and the conviction for demanding property with menaces contrary to section 302 of the Penal Code is upheld
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

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.