GILBERT KIPKORIR KEMBOI vs REPUBLIC [2001] KECA 44 (KLR)
The bottom line
#A concealed knife the victim never saw doesn't make theft 'robbery with violence' — Kenya's Court of Appeal swapped a death sentence for seven years.
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 appellant was properly identified as the person who snatched Mrs Kroll's handbag on the North Coast beach.
- 2.Whether there was sufficient evidence to enable the two courts below to find that the offence committed was robbery with violence under section 296(2) of the Penal Code, given that the victim was unaware of the knife found on the appellant.
- 3.Whether, on the facts proved, the Court could substitute a conviction for the lesser offence of simple robbery under section 296(1) of the Penal Code and pass a lawful sentence in its place.
Key legal issues
#Whether the evidence established robbery with violence under section 296(2) of the Penal Code where the offender carried a concealed weapon unknown to the victim.
No. The conviction under section 296(2) could not be sustained; the offence proved was simple robbery under section 296(1).
Section 295 of the Penal Code defines robbery; section 296(2) aggravates it where, among other things, the offender is armed with a dangerous or offensive weapon. The Krolls testified that the appellant held nothing during the snatching; the multi-purpose knife surfaced only at the police station, and no witness said the appellant used or threatened to use it. Because the victims neither knew of the knife nor were given any indication of it, the aggravating element of arming was absent, leaving only simple robbery under section 296(1).
Whether the Court of Appeal on second appeal may substitute a conviction for a lesser offence and impose an appropriate sentence.
Yes. Under sections 179(1) and 361(2), (3) and (4) of the Criminal Procedure Code the Court substituted a conviction for simple robbery and imposed a seven-year term.
Section 179(1) of the Criminal Procedure Code permits conviction of a lesser offence where the particulars proved do not qualify for the greater. Sub-sections (2), (3) and (4) of section 361 empower this Court, on second appeal, to reconsider conviction and sentence and, instead of dismissing the appeal, to substitute a conviction for the other offence the courts below could properly have found, with the sentence justified in law. The Court exercised both powers, replacing the section 296(2) conviction and death sentence with simple robbery and a seven-year term.
Whether the identification of the appellant as the assailant was safe.
Yes. The identification by both Krolls, combined with Ali Samuel Charo's chase and the appellant's possession of the snatched bag, left the Court in no doubt that the appellant was the assailant.
Mrs Kroll recognised the appellant at Bamburi Police Station by his yellow shirt and Mr Kroll by the shirt and shoes; both were positive. Ali Samuel Charo chased a man running from the vicinity and saw the appellant brought out of a compound with the bag. Criticism of the prosecution for not calling the arresting watchman was rejected as causing no prejudice, since Charo was positive about the arrest and the appellant was found with the handbag. The appellant's account of meeting twenty armed men was disbelieved by both courts below.
Legal principles established
#- Where a charge of robbery with violence under section 296(2) of the Penal Code rests on the offender being armed with a dangerous or offensive weapon, the victim must have knowledge or at least an inkling of the weapon and of the assailant's intention or attempt to use it; mere concealed possession of such a weapon is insufficient to sustain a conviction for aggravated robbery.
- On a second appeal, the Court of Appeal may, instead of dismissing the appeal, substitute a conviction for a lesser offence proved on the facts and pass the sentence justified in law for that offence.
- Section 179(1) of the Criminal Procedure Code empowers a court to convict an accused of a lesser offence where the particulars proved do not qualify for conviction of the greater offence charged.
Court orders
#- 1.Appeal allowed to the extent that the conviction under section 296(2) of the Penal Code is set aside.
- 2.The mandatory death sentence imposed on the appellant is set aside.
- 3.Conviction substituted with that of simple robbery contrary to section 296(1) of the Penal Code.
- 4.A term of seven years' imprisonment imposed on the appellant, effective from the date of conviction in the subordinate court.
- 5.The appellant to be under police supervision for 5 years from the date of his release from prison.
- 6.The appellant ordered to receive three (3) strokes of the cane.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.CR.A. No. 66 of 2000
- Jurisdiction invoked
- Sections 361(2), (3) and (4) of the Criminal Procedure Code (second appeal against conviction and sentence)
Relief refused
#Outright acquittal on the robbery charge (quashing of the conviction altogether)
The Court was in no doubt that the appellant was the assailant; since the facts proved simple robbery, it substituted a conviction for the lesser offence rather than acquitting.
Release from custody without any sentence
Instead of setting the appellant free, the Court imposed seven years' imprisonment effective from the date of the subordinate court's conviction, together with five years' police supervision and three strokes of the cane.
Costs
None made. The judgment contains no order as to costs, this being a criminal appeal.
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.
To that extent we allow this appeal, set aside the conviction contrary to section 296(2) of the Penal Code as well as the mandatory death sentence imposed on the appellant and substitute the conviction with that of simple robbery contrary to section 296(1) of the Penal Code and impose a term of seven year imprisonment on the appellant.
The said term will be effective from the date of conviction in the subordinate court. He is ordered to be under police supervision for 5 years from the date of his release from prison. He is also ordered to receive three (3) strokes of the cane.
Mere presence of a multi-purpose (what is often referred to as a swiss knife) knife in the pocket of an assailant without any knowledge of that fact on the part of the victim and without any indication by the assailant that he has it, is not enough to enable the court to say that robbery was an aggravated one.
To enable a Court find what is commonly known as aggravated robbery, there has to be (inter alia) evidence that the offender is armed with a dangerous or offensive weapon or instrument.
It must follow that the victim had knowledge or at least an inkling that there was some such weapon which the assailant intended to or attempted to use it.
We are of the view that as the Krolls were not aware of the existence of the knife in the pocket of the appellant the conviction under section 296(2) of the Penal Code cannot be sustained. The conviction can only be contrary to section 296(1) of the said Code.
Issues in the judgment
#OCR/transcription corruption in the source text: the transition from the second-appeal recital to the facts is garbled (reads 'secAo ndG earpmpaena l.couple' where 'second appeal. The couple' is intended); similar artefacts appear in the quotation of section 295 ('Section 29 5' and 'threatens to us e actual violence'). Quotes drawn from these passages should be verified against the official report.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "GILBERT KIPKORIR KEMBOI vs REPUBLIC [2001] KECA 44 (KLR)", Case Analysis (2001). Criminal Appeal No. 173 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/44/eng@2001-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.