Evanson Muiruri Gichane v Republic
The bottom line
#Kenya's Court of Appeal confirmed that people convicted of attempted robbery with violence cannot be sentenced to death and must receive the lesser prison term.
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 trial was a nullity because none of the witnesses was sworn
- 2.Whether the charge sheet failed to disclose what the robbers attempted to steal, rendering the particulars inadequate
- 3.Whether the death sentence for attempted robbery with violence was lawful given section 389 of the Penal Code
Key legal issues
#Whether the trial was a nullity for want of sworn witnesses
Ground dismissed; the original and typed records showed all witnesses were duly sworn.
The Court called for the original trial file and compared it with the typed record. Both indicated that the learned Magistrate swore all the witnesses. The discrepancy alleged by the appellant was therefore not established and the ground of appeal failed.
Adequacy of charge particulars under Article 50(2)(b)
Particulars were adequate; the charge clearly stated what the appellant was to answer and the trial was fair.
The Court held that robbers do not carry an inventory of what they intend to steal; they steal whatever they find. The particulars described the armed attempt and the threat of violence, satisfying the constitutional right to be informed of the charge with sufficient detail.
Legality of the death sentence for attempted robbery with violence
Section 389 caps the sentence for a capital attempt at seven years' imprisonment; the appellant was entitled to the less punitive sentence.
The Court found an apparent contradiction between section 297(2), which prescribes death, and section 389, which caps punishment for attempts at capital offences at seven years. Only Parliament can resolve the conflict, but the accused must receive the less punitive sentence, following Mutiso.
Legal principles established
#- An accused convicted of an attempt punishable by death is entitled to the less punitive of the two sentences prescribed by sections 297(2) and 389 of the Penal Code.
- Charge particulars in robbery cases need not specify the exact goods intended to be stolen; robbers steal whatever they find.
Court orders
#- 1.Appeal against conviction dismissed
- 2.Appeal against sentence allowed to the extent that the death sentence is substituted with a prison term resulting in the appellant's release, not exceeding seven years
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Cr. A. No. 122 of 2004
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code following conviction under section 297(2) of the Penal Code
Relief refused
#Quashing of the conviction on grounds of unsworn witnesses and inadequate charge particulars
Original trial record showed witnesses were duly sworn; charge particulars were clear and the appellant had opportunity to defend
Costs
No costs order made 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.
Accordingly this appeal is dismissed as regards the conviction of the appellant but we allow the appeal against the sentence to the extent that we substitute the death sentence with a prison term that will result in the appellant's release from prison
But the appellant is entitled to the less punitive of the two sentences.
Robbers normally come to steal whatever they find in the house or on the victim.
it was clear to us that all the witnesses were duly sworn as that is what is indicated in the learned Magistrate's record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evanson Muiruri Gichane v Republic", Case Analysis (2010). Criminal Appeal No. 277 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/497/eng@2010-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.