Japheth Chege Mwangi v Republic [2016] KECA 559 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a court can convict you of attempting a crime even when you were only charged with the full offence.
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 magistrate was entitled to convict the appellant of attempted robbery with violence contrary to section 297(2) of the Penal Code when the charge preferred was robbery with violence contrary to section 296(2) of the Penal Code, without the appellant first being given an opportunity to plead to the attempted robbery charge.
Key legal issues
#Whether a trial court may convict on an uncharged attempt where the principal charge fails, without a fresh plea
Yes. Section 180 of the Criminal Procedure Code expressly permits conviction of an attempt to commit the offence charged although the attempt was not charged, so no fresh plea was required.
The Court construes section 180 of the Criminal Procedure Code, which authorises conviction for an attempt to commit the offence charged notwithstanding that the attempt was not separately charged. Counsel's reliance on section 179 was misplaced: section 179 deals with conviction for a minor included offence where only some particulars are proved, a different mechanism. The trial magistrate's conviction of the appellant for attempted robbery with violence after finding the completed robbery unproved was therefore lawful, and the High Court was right to uphold it.
The interaction between section 389 of the Penal Code and section 297(2) of the Penal Code on sentencing for attempts
Section 389's default penalty (half the sentence, or a capped term for capital offences) applies only where no other punishment is provided; attempted robbery with violence carries its own specific sentence under section 297(2), which ousts section 389.
Relying on Charles Mulandi Mbula v Republic and Mulinge Maswili v Republic, the Court restates that section 389 creates an exception-laden general rule: where Parliament has provided a separate and distinct punishment for an attempted offence, section 389 does not apply. Attempted robbery with violence falls in the latter category because section 297(2) prescribes a specific penalty. Consequently the appellant's argument that section 297(2) is a 'lesser offence' conviction outside the permissible scheme fails, and section 179 of the Criminal Procedure Code is likewise irrelevant.
Scope of a second appeal under section 361(a) of the Criminal Procedure Code
A second appeal lies only on matters of law; the Court does not revisit concurrent findings of fact made by the trial court and the High Court.
The Court notes that the point taken - conviction on an uncharged attempt - was a pure question of law not raised at the High Court, and that the facts were the subject of concurrent findings below. Invoking section 361(a) of the Criminal Procedure Code and the established line of second-appeal authorities, the Court confines itself to the legal question of the trial court's power to convict on the attempt, leaving the factual findings undisturbed.
Legal principles established
#- Where a person is charged with a complete offence and that offence is not proved, the trial court may convict of attempting to commit that offence even though attempt was not charged, provided the Penal Code does not prescribe a separate regime displacing that power.
- Section 389 of the Penal Code's general penalty for attempts applies only where no other punishment is provided; where the Penal Code prescribes a specific sentence for the attempted offence (as with attempted robbery with violence under section 297(2)), that specific sentence governs and neither section 179 of the Criminal Procedure Code nor section 389 of the Penal Code applies.
Court orders
#- 1.The appeal is dismissed in its entirety.
- 2.The conviction for attempted robbery with violence contrary to section 297(2) of the Penal Code and the sentence imposed are upheld.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HC. CR.A. 673 of 2010
- Jurisdiction invoked
- Section 361(a) Criminal Procedure Code (second appeal on matters of law only)
Relief refused
#The appellant's appeal against conviction on the ground that he was convicted of attempted robbery with violence without being given an opportunity to plead to that charge
The Court held that section 180 of the Criminal Procedure Code permits conviction for an attempt where the principal offence charged is not proved, and that neither section 179 of the Criminal Procedure Code nor section 389 of the Penal Code displaced this power because section 297(2) of the Penal Code prescribes a specific penalty.
Costs
No costs order was 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.
When a person is charged with an offence, he may be convicted of having attempted to commit that offence although he was not charged with the attempt.
It is clear from a plain reading of Section 389 of the Penal Code that it applies only where no other punishment is expressly prescribed in the penal statute.
The trial magistrate was entitled to find that the appellant was guilty of the offence of attempted robbery with violence under Section 297(2) Penal Code where the appellant was charged with an offence under section 296(2) of the Penal Code.
The upshot of this is that this appeal has no merit and is accordingly dismissed.
Issues in the judgment
#The memorandum of appeal as reproduced contains a typographical duplication: 'substituted the charge of robbery with violence with a major offence with a major offence (sic) of attempted robbery with violence without the appellate (sic) being given an opportunity to plead'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Japheth Chege Mwangi v Republic [2016] KECA 559 (KLR)", Case Analysis (2016). Criminal Appeal No. 73 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/559/eng@2016-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.