Francis Mutuku Nzangi v Republic

The court construed Section 388 as covering a plan put in motion by open and discernible acts but unfulfilled. The appellant and his accomplices entered the shop armed with a panga, used a ruse to gain ingress, attempted to lock the door and assaulted the complainant. The interruption by members of the public aborted the robbery; this was a classic case of attempt. It matters not whether they intended to rob money or merchandize.

Relying on Mwandikwa s/o Mutisya and the pickpocket analogy, the court held that an offender who opens a car or shop intending to steal what he expects to find is guilty of attempt even if the contents differ from or turn out to be nothing. The appellant's acts were direct and proximate, part of the fully commenced transaction.

The impugned passage was a way of saying the unsworn statement was a sham and afterthought. A prima facie case, per Ramanlal Bhatt, is one on which a reasonable tribunal could convict if no explanation is offered. Assessing whether the defence dislodges that case does not place an evidential burden on the accused.

Section 137(a)(ii) of the Criminal Procedure Code requires reference to the section creating the offence, and the court adopts the view that the punishment section creates the offence. Section 297(1) creates a different offence of attempted simple robbery; the extra elements of sub-section (2) - weapon, company or violence - transform the offence.

Section 389 applies only 'if no other punishment is provided'. Earlier decisions imposing seven years, including Bonface Juma Khisa and Moris Otieno Oduor, misapprehended the section; the Oduor decision rested on a State concession with a dissenting presiding judge. The court aligns with James Maina Magare that the punishment is death.