(Appeal from the judgment, conviction and sentence in Msambweni Magistrates Court Criminal Case No. E243 of 2021 delivered on 21/6/2023 by Hon. Sandra Ogot, Principal Magistrate)
J U D G M E N T
1. The appellant, Salim Omar Kaingu was charged alongside one other person who was acquitted, with robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. The particulars of the offence were that on 8/8/2021 at around 2045 Hours at Masindeni village in Kinondo location of Kwale County within Coast region jointly with another not before court, while armed with offensive weapons namely pangas and rungus robbed Bakari Swaleh Mwakondo of cash KShs 10,400/= and at the time of such robbery wounded the said Bakari Swaleh Mwakondo.
2. The appellant pleaded not guilty to the charge. After full trial, he was convicted as charged and sentenced to death. Dissatisfied by that trial court’s decision, the appellant has moved to this court on appeal based on the grounds outlined in his petition dated 6/12/2023. The six grounds outlined in the petition are basically two grounds. First that the case of robbery with violence was not proved against the appellant for reasons that the evidence adduced by the prosecution did not establish that theft had taken place and that the appellant had stolen the complainant’s money as alleged and second that the appellant acted on provocation by the complainant, hence a fight broke out and the same was not animated by a desire on the part of the appellant to steal.
3. The appeal was heard by way of written submissions filed by learned counsel for the appellant alone. In spite of being given time to file submissions, the respondent failed to do so. Learned counsel urged the court to allow his appeal.
4. Learned counsel submits that the prosecution failed to establish theft as an ingredient of the offence of robbery with violence. He has cited the case of Charles Mwai Kimani v Republic [2022] eKLR to support his position.
5. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
6. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
7. The issue for determination by this court is whether the prosecution proved its case against the appellant on the charge of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code to the required standard of proof beyond any reasonable doubt.
8. The prosecution presented 5 witnesses before the trial court in support of its case. In summary, the prosecution’s case was that PW 2, Bakari Swaleh Mwakondoo, the complainant, was coming from the shops carrying a packet of maize floor and “omena”. When he reached the door to his house he encountered the accused person and his co-accused there. He identified them as they were known to him as they come from the neighbourhood. There was bright moonlight shining at the time. He spoke to them addressing the appellant’s co-accused Rama and asked him “kabla sijajenga nyumba hapa sijakuona hapa itakuwaje leo umefika hapa usiku…” Before he could finish the sentence the appellant, who was behind him and armed with a panga in his right hand cut him with the panga at the back of his head. Rama, the co-accused never responded. As he was opening the door he heard or felt being beaten from behind. He was cut with a panga and sustained two cuts on the head, one at the back, the other at the front. He was also cut on the front of the head as well as arm and leg. He came to while in hospital. By that time, the clothes he was wearing had been removed and were by his side. He checked them and did not find KShs 10,400/= and National bank ATM.
9. PW 1, Ali Abdallah Mwanzeve is the complainant’s brother. He gave evidence that on the material evening he was alerted by his uncle that his brother, the complainant who lived 2 to 3 houses from him had been attacked and cut with pangas by unknown assailants. They proceeded to the scene where they found the complainant near his neighbour’s home, not too far from his home. There was a group of people surrounding him. He was lying on the ground on his stomach and was badly injured and appeared as if dead. His clothes were blood soaked. PW 2 saw a deep cut wound at the back of the complainant’s head. He touched the complainant and called him out and the complainant responded.
10. On the way to taking the complainant to hospital, worried that he could die on the way, PW 2 asked him whoever had injured him and the complainant said Salim Omar Kaingu and Rama Chaka who are well known to PW 2 as they come from the same village.
11. PW 3, Hamisi Juma is the village elder of Masindeni village. When he receibed the report of the complainant being injured, he proceeded to his home and found him lying on the ground some distance from his house. The complainant responded to his name and mentioned Salim as his assailant.
12. While the complainant was being taken to hospital, PW 3 went to the complainant’s home. On his way, he recovered keys, a panga with a black handle, blood stained maize floor and “omena.” He called Msambweni police station and made the report. He said the two appellant and his co-accused at the trial were known to him as they are residents of his village.
13. PW 4, PC Emmanuel Mutori of Msambweni police station was the investigating officer in the case.
14. PW 5, Dr. Mwanaidi Abdalla Mwasipho produced the P# form completed by her colleague Dr. Mwaleso Kishindo who was away on study leave.
15. The appellant gave sworn evidence in defence and called two witnesses. He denied that he committed the offence. He said that he was at his home throughout the evening and did not venture out to attack the complainant.
16. DW 2, Hamisi Omar was the appellant’s witness. He said he was at home with the appellant and their mother, his children and other family members the material evening between 7.30 p.m. and 8.00 p.m. when the incident happened.
17. The appellant’s co-accused person at the trial gave sworn evidence in defence. He gave evidence that the appellant had in fact fought with the complainant on the material evening and that the appellant was armed with a panga which at some point cut the co-accused as he tried to intervene in the fight. He left the scene as the two were fighting.
18. I have considered and re-evaluated the evidence adduced by the prosecution witnesses before the trial court. I have also considered the defence that was put forward by the appellant. I have also considered the grounds of appeal set forth by the appellant and the written submission filed by learned counsel for the appellant.
19. It is apparent from the grounds of appeal and the submissions by learned counsel that the appellant largely accepted the findings of the learned trial magistrate that on the material evening an incident occurred between the appellant and the complainant leading the appellant to injure the complainant. The appellant’s contention is that this was not a case of robbery with violence but a retaliation by the appellant upon being provoked by the complainant for calling him a thief. This appeal will therefore proceed on that line.
20. The learned trial magistrate did not believe the evidence tendered by the appellant but believed the defence tendered by the appellant’s co-accused and relied on it to convict the appellant and acquit the co-accused. She found that the complainant’s evidence was corroborated by the evidence of the appellant’s co-accused. However, the appellant does not seem to have a problem with that. So, what was the evidence of the co-accused?
21. The co-accused as DW 2 gave sworn evidence. He said that contrary to what the appellant had said, they both come from the same village with the complainant. On the material evening, they were walking from the football pitch going home using a route that passes outside the complainant’s home. There was bright moonlight and one could see clearly. They met the complainant who was coming from the shops carrying items he was going to cook for dinner. The complainant called the appellant a thief. In retaliation, and without asking why he had called him so, the appellant attacked the complainant and a fight ensued between them. He tried to intervene in the fight but the appellant had a panga in his hilt and it cut the co-accused on the arm. He was bleeding and so he left the two and went home.
22. The co-accused said that indeed the complainant had accused the appellant of stealing his solar panel and sold it to the co-accused. However, the complainant had since established that the solar panel that the co-accused had it their home was not his that had been allegedly stolen by the appellant and so he left the co-accused alone.
23. Although the co-accused’s account of events differed markedly with those of the complainant, the learned trial magistrate found corroboration of that evidence in that of the complainant. She believed the co-accused that he never attacked the complainant and found that indeed, the complainant had said that he was only attacked by the appellant. She also believed the co-accused person that he had tried to intervene “when they started fighting.” The learned trial magistrate therefore found that there was a fight between the appellant and the complainant. It means that on that aspect, she did not believe the complainant who never said that he fought with the appellant but that the appellant attacked and cut him suddenly from behind while the co-accused stood there. The court then found that he was not a participant in the offence of robbery with violence.
24. The difficulty with the decision of the learned trial magistrate however, is that she chose to believe and therefore rely on the co-accused’s testimony that was favourable to only him and left out that which was favourable to the appellant. That was not a correct approach to considering the evidence. Having believed that there was a fight between the complainant and the appellant, the correct approach would have been to believe too the cause of the fight as stated by the co-accused. Indeed, there was reason to so believe.
25. There is clear evidence from the complainant and other prosecution witnesses that the complainant had suspected the appellant had stolen his solar panel and sold it to the co-accused person. It was the co-accused’s evidence that on his part he had resolved his suspicion with the complainant by satisfying him that in fact the solar panel that was at their home was not the one stolen from the complainant’s home. That left the complainant’s wrath with the appellant. Naturally he was not happy with the appellant. It is therefore highly probable as stated by the co-accused person that when they met on the road, he vented out his anger upon the appellant by calling him a thief. The appellant in turn reacted by confronting the complainant with a fight. This took place on the road and not at the complainant’s doorstep.
26. I find that version quite probable because, PW 1, the complainant’s own brother said that they found the complainant lying outside not too far from his, near his neighbour’s home. Clearly, that was not at the complainant’s doorstep as was alleged by the complainant. PW 3 who also visited the scene shortly after the incident never said that it was at the complainant’s doorstep. On his part, PW 3 said that he was some distance from the complainant’s house and he later recovered the maize floor and “omena” that the complainant had and keys along the path leading to the complainant’s home. The complainant never said that after he was cut, he got a chance to move even an inch. It is therefore evident that the incident took place on the road and not at the complainant’s doorstep.
27. Another issue that makes the evidence of the co-accused more credible than that of the complainant is that it is difficult to see how the complainant could have seen the panga which the appellant who was behind him had yet he could not identify the weapon he alleged the co-accused person had yet he was in front of him. There must be something the complainant was not being honest about there. His saying that the co-accused was also armed was meant to implicate the two accused persons in the offence of robbery with violence when he very well knew that in fact the issue was different.
28. I therefore find that the version of events as stated by the co-accused was authentic and that the complainant exaggerated by saying that the appellant and his co-accused had attacked him at his doorstep.
29. On the issue of the complainant’s money and ATM card having been stolen, the learned trial magistrate found that as he had the items at the time the attack started and did not have them at the end of the attack, then it is safe to state that whoever attacked him is the one who took these items from him. With profound respect to the learned trial magistrate, that conclusion was far-fetched. First, if that was the reasoning, it must also implicate the co-accused person because there would be no reason to find that the appellant would have taken the items but not the co-accused, especially since it was only the evidence of the co-accused relied upon. But a more profound reason to reject that conclusion is that the complainant only came to realize that the items were missing while he was in hospital. There is evidence from PW 1 that many other people went to where he was left lying on the road after the attack. The fact that any of them other than the appellant could have taken the money cannot be discounted. That finding was unsupported by evidence and it must be and is hereby set aside.
30. Consequently, on the issue of theft of the KShs 10,400/= and the ATM card by the appellant, I find that there was no evidence to support the same. Therefore, there was no evidence that the appellant stole the complainant’s items in the course of the incident.
31. Since stealing is an essential ingredient of the offence of robbery with violence, as provided for under section 295 of the Penal code, I find that the evidence did not prove the offence of robbery with violence.
32. However, there is evidence by the prosecution witnesses and the appellant’s co-accused that the appellant injured the complainant. There is evidence by the complainant and supported by that of the appellant’s co-accused that he cut the complainant using a panga. The appellant’s ground of appeal on this issue is that he did so out of provocation. However, that was not an issue raised by the accused person in his defence at the trial. It is only being raised on appeal. The trial court had no opportunity to consider that issue and therefore, this court cannot consider that defence.
33. PW 2, the complainant testified that the appellant cut him with a panga on the head and both legs. PW 1 and PW 3 who saw him shortly after the incident confirmed that they saw the deep cut wounds on the complainant. PW 5, Dr. Mwanaidi Abdallah said that the complainant sustained deep cuts on the skull, top of the head and back of the head, deep cut on the left side lower jaw and deep cuts on both legs. The injuries were caused by a sharp object and were categorized as grievous harm.
34. Grievous harm is defined under section 4 of the Penal Code to mean;
“Any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health or which extends to permanent disfigurement or to any permanent or serious injury to any external and internal organ, membrane or sense.”
35. I am are satisfied that the complainant's injury amounted to grievous harm as defined under section 4 of the Penal Code above. The definition contains several ingredients which are contained in the offence of robbery with violence. One of the ingredients of the offence of robbery with violence under section 296(2) of the Penal Code is that the offender wounds, beats, strikes, or inflicts any other personal violence to any person immediately before or after the time of robbery.
36. In this case there was evidence that the appellant did wound and used personal violence to the complainant. I am satisfied that the complainant's injuries did amount to dangerous harm or serious injury to health both of which are ingredients contained in the definition of grievous harm which is minor and cognate to the offence of robbery with violence. In the case of Chelule & another v Republic [2024] KEHC 1866 (KLR) the issue of the offence of grievous harm being minor and cognate to that of robbery with violence is extensively discussed and I am persuaded to follow the reasoning therein.
37. Section 179(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya provides:-
“179(1). When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved he may be convicted of the minor offence although he was not charged with it.”
(2). When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it”.
38. In the case of Umuro Adan Doti v Republic [2008] KECA 221 (KLR) the appellant had been charged with robbery with violence but the fact of theft had not been proved and the Court of Appeal found that by dint of section 179 of the Criminal Procedure Code the subordinate court or the High Court on appeal could have convicted the appellant of any minor and cognate offence to the offence of aggravated robbery established by the facts. (See also the case of Lawrence Omondi Otieno v Republic [2007] KECA 279 (KLR) where a similar verdict was reached by the Court of Appeal). In the Umuro case the Court of Appeal concluded that:
“In the result, the appeal is allowed to the extent that the conviction for offence of robbery with violence is quashed and the sentence of death set aside and in lieu therefor we substitute a conviction for causing grievous harm to Medina Ramata contrary to Section 234 of the Penal Code and sentence the appellant to 15 years imprisonment to take effect from 15th February, 1999 when the appellant was convicted and sentenced by the magistrate.”
39. I am well guided by this decision. In the present case, I find that the evidence disclosed the offence of causing grievous harm contrary to section 234 of the Penal Code which is a minor and cognate offence to that of robbery with violence.
40. Consequently, under section 354(3)(a)(ii) of the Criminal Procedure Code, I hereby alter the conviction on robbery with violence, set aside the death sentence and hereby substitute the conviction with causing grievous harm contrary to section 234 of the Penal Code. I hereby sentence the appellant to serve 10 years imprisonment from the date when he was charged before the trial court on 9/9/2021.
41. The upshot of the above reasons is that the appeal succeeds partially to the extend of altering the offence with which the appellant was convicted as above.
42. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered in open court at Kwale this 23rd day of January 2025 in the presence of:
The appellant in person from Shimo la Tewa prison.
N/Aby counsel for the appellant.
Ms Vallerie for the respondent.
Johnson court assistant.
ANDAYI W. FRANCIS
JUDGE
J U D G M E N T
1. The appellant, Salim Omar Kaingu was charged alongside one other person who was acquitted, with robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. The particulars of the offence were that on 8/8/2021 at around 2045 Hours at Masindeni village in Kinondo location of Kwale County within Coast region jointly with another not before court, while armed with offensive weapons namely pangas and rungus robbed Bakari Swaleh Mwakondo of cash KShs 10,400/= and at the time of such robbery wounded the said Bakari Swaleh Mwakondo.
2. The appellant pleaded not guilty to the charge. After full trial, he was convicted as charged and sentenced to death. Dissatisfied by that trial court’s decision, the appellant has moved to this court on appeal based on the grounds outlined in his petition dated 6/12/2023. The six grounds outlined in the petition are basically two grounds. First that the case of robbery with violence was not proved against the appellant for reasons that the evidence adduced by the prosecution did not establish that theft had taken place and that the appellant had stolen the complainant’s money as alleged and second that the appellant acted on provocation by the complainant, hence a fight broke out and the same was not animated by a desire on the part of the appellant to steal.
3. The appeal was heard by way of written submissions filed by learned counsel for the appellant alone. In spite of being given time to file submissions, the respondent failed to do so. Learned counsel urged the court to allow his appeal.
4. Learned counsel submits that the prosecution failed to establish theft as an ingredient of the offence of robbery with violence. He has cited the case of Charles Mwai Kimani v Republic [2022] eKLR to support his position.
5. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
6. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
7. The issue for determination by this court is whether the prosecution proved its case against the appellant on the charge of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code to the required standard of proof beyond any reasonable doubt.
8. The prosecution presented 5 witnesses before the trial court in support of its case. In summary, the prosecution’s case was that PW 2, Bakari Swaleh Mwakondoo, the complainant, was coming from the shops carrying a packet of maize floor and “omena”. When he reached the door to his house he encountered the accused person and his co-accused there. He identified them as they were known to him as they come from the neighbourhood. There was bright moonlight shining at the time. He spoke to them addressing the appellant’s co-accused Rama and asked him “kabla sijajenga nyumba hapa sijakuona hapa itakuwaje leo umefika hapa usiku…” Before he could finish the sentence the appellant, who was behind him and armed with a panga in his right hand cut him with the panga at the back of his head. Rama, the co-accused never responded. As he was opening the door he heard or felt being beaten from behind. He was cut with a panga and sustained two cuts on the head, one at the back, the other at the front. He was also cut on the front of the head as well as arm and leg. He came to while in hospital. By that time, the clothes he was wearing had been removed and were by his side. He checked them and did not find KShs 10,400/= and National bank ATM.
9. PW 1, Ali Abdallah Mwanzeve is the complainant’s brother. He gave evidence that on the material evening he was alerted by his uncle that his brother, the complainant who lived 2 to 3 houses from him had been attacked and cut with pangas by unknown assailants. They proceeded to the scene where they found the complainant near his neighbour’s home, not too far from his home. There was a group of people surrounding him. He was lying on the ground on his stomach and was badly injured and appeared as if dead. His clothes were blood soaked. PW 2 saw a deep cut wound at the back of the complainant’s head. He touched the complainant and called him out and the complainant responded.
10. On the way to taking the complainant to hospital, worried that he could die on the way, PW 2 asked him whoever had injured him and the complainant said Salim Omar Kaingu and Rama Chaka who are well known to PW 2 as they come from the same village.
11. PW 3, Hamisi Juma is the village elder of Masindeni village. When he receibed the report of the complainant being injured, he proceeded to his home and found him lying on the ground some distance from his house. The complainant responded to his name and mentioned Salim as his assailant.
12. While the complainant was being taken to hospital, PW 3 went to the complainant’s home. On his way, he recovered keys, a panga with a black handle, blood stained maize floor and “omena.” He called Msambweni police station and made the report. He said the two appellant and his co-accused at the trial were known to him as they are residents of his village.
13. PW 4, PC Emmanuel Mutori of Msambweni police station was the investigating officer in the case.
14. PW 5, Dr. Mwanaidi Abdalla Mwasipho produced the P# form completed by her colleague Dr. Mwaleso Kishindo who was away on study leave.
15. The appellant gave sworn evidence in defence and called two witnesses. He denied that he committed the offence. He said that he was at his home throughout the evening and did not venture out to attack the complainant.
16. DW 2, Hamisi Omar was the appellant’s witness. He said he was at home with the appellant and their mother, his children and other family members the material evening between 7.30 p.m. and 8.00 p.m. when the incident happened.
17. The appellant’s co-accused person at the trial gave sworn evidence in defence. He gave evidence that the appellant had in fact fought with the complainant on the material evening and that the appellant was armed with a panga which at some point cut the co-accused as he tried to intervene in the fight. He left the scene as the two were fighting.
18. I have considered and re-evaluated the evidence adduced by the prosecution witnesses before the trial court. I have also considered the defence that was put forward by the appellant. I have also considered the grounds of appeal set forth by the appellant and the written submission filed by learned counsel for the appellant.
19. It is apparent from the grounds of appeal and the submissions by learned counsel that the appellant largely accepted the findings of the learned trial magistrate that on the material evening an incident occurred between the appellant and the complainant leading the appellant to injure the complainant. The appellant’s contention is that this was not a case of robbery with violence but a retaliation by the appellant upon being provoked by the complainant for calling him a thief. This appeal will therefore proceed on that line.
20. The learned trial magistrate did not believe the evidence tendered by the appellant but believed the defence tendered by the appellant’s co-accused and relied on it to convict the appellant and acquit the co-accused. She found that the complainant’s evidence was corroborated by the evidence of the appellant’s co-accused. However, the appellant does not seem to have a problem with that. So, what was the evidence of the co-accused?
21. The co-accused as DW 2 gave sworn evidence. He said that contrary to what the appellant had said, they both come from the same village with the complainant. On the material evening, they were walking from the football pitch going home using a route that passes outside the complainant’s home. There was bright moonlight and one could see clearly. They met the complainant who was coming from the shops carrying items he was going to cook for dinner. The complainant called the appellant a thief. In retaliation, and without asking why he had called him so, the appellant attacked the complainant and a fight ensued between them. He tried to intervene in the fight but the appellant had a panga in his hilt and it cut the co-accused on the arm. He was bleeding and so he left the two and went home.
22. The co-accused said that indeed the complainant had accused the appellant of stealing his solar panel and sold it to the co-accused. However, the complainant had since established that the solar panel that the co-accused had it their home was not his that had been allegedly stolen by the appellant and so he left the co-accused alone.
23. Although the co-accused’s account of events differed markedly with those of the complainant, the learned trial magistrate found corroboration of that evidence in that of the complainant. She believed the co-accused that he never attacked the complainant and found that indeed, the complainant had said that he was only attacked by the appellant. She also believed the co-accused person that he had tried to intervene “when they started fighting.” The learned trial magistrate therefore found that there was a fight between the appellant and the complainant. It means that on that aspect, she did not believe the complainant who never said that he fought with the appellant but that the appellant attacked and cut him suddenly from behind while the co-accused stood there. The court then found that he was not a participant in the offence of robbery with violence.
24. The difficulty with the decision of the learned trial magistrate however, is that she chose to believe and therefore rely on the co-accused’s testimony that was favourable to only him and left out that which was favourable to the appellant. That was not a correct approach to considering the evidence. Having believed that there was a fight between the complainant and the appellant, the correct approach would have been to believe too the cause of the fight as stated by the co-accused. Indeed, there was reason to so believe.
25. There is clear evidence from the complainant and other prosecution witnesses that the complainant had suspected the appellant had stolen his solar panel and sold it to the co-accused person. It was the co-accused’s evidence that on his part he had resolved his suspicion with the complainant by satisfying him that in fact the solar panel that was at their home was not the one stolen from the complainant’s home. That left the complainant’s wrath with the appellant. Naturally he was not happy with the appellant. It is therefore highly probable as stated by the co-accused person that when they met on the road, he vented out his anger upon the appellant by calling him a thief. The appellant in turn reacted by confronting the complainant with a fight. This took place on the road and not at the complainant’s doorstep.
26. I find that version quite probable because, PW 1, the complainant’s own brother said that they found the complainant lying outside not too far from his, near his neighbour’s home. Clearly, that was not at the complainant’s doorstep as was alleged by the complainant. PW 3 who also visited the scene shortly after the incident never said that it was at the complainant’s doorstep. On his part, PW 3 said that he was some distance from the complainant’s house and he later recovered the maize floor and “omena” that the complainant had and keys along the path leading to the complainant’s home. The complainant never said that after he was cut, he got a chance to move even an inch. It is therefore evident that the incident took place on the road and not at the complainant’s doorstep.
27. Another issue that makes the evidence of the co-accused more credible than that of the complainant is that it is difficult to see how the complainant could have seen the panga which the appellant who was behind him had yet he could not identify the weapon he alleged the co-accused person had yet he was in front of him. There must be something the complainant was not being honest about there. His saying that the co-accused was also armed was meant to implicate the two accused persons in the offence of robbery with violence when he very well knew that in fact the issue was different.
28. I therefore find that the version of events as stated by the co-accused was authentic and that the complainant exaggerated by saying that the appellant and his co-accused had attacked him at his doorstep.
29. On the issue of the complainant’s money and ATM card having been stolen, the learned trial magistrate found that as he had the items at the time the attack started and did not have them at the end of the attack, then it is safe to state that whoever attacked him is the one who took these items from him. With profound respect to the learned trial magistrate, that conclusion was far-fetched. First, if that was the reasoning, it must also implicate the co-accused person because there would be no reason to find that the appellant would have taken the items but not the co-accused, especially since it was only the evidence of the co-accused relied upon. But a more profound reason to reject that conclusion is that the complainant only came to realize that the items were missing while he was in hospital. There is evidence from PW 1 that many other people went to where he was left lying on the road after the attack. The fact that any of them other than the appellant could have taken the money cannot be discounted. That finding was unsupported by evidence and it must be and is hereby set aside.
30. Consequently, on the issue of theft of the KShs 10,400/= and the ATM card by the appellant, I find that there was no evidence to support the same. Therefore, there was no evidence that the appellant stole the complainant’s items in the course of the incident.
31. Since stealing is an essential ingredient of the offence of robbery with violence, as provided for under section 295 of the Penal code, I find that the evidence did not prove the offence of robbery with violence.
32. However, there is evidence by the prosecution witnesses and the appellant’s co-accused that the appellant injured the complainant. There is evidence by the complainant and supported by that of the appellant’s co-accused that he cut the complainant using a panga. The appellant’s ground of appeal on this issue is that he did so out of provocation. However, that was not an issue raised by the accused person in his defence at the trial. It is only being raised on appeal. The trial court had no opportunity to consider that issue and therefore, this court cannot consider that defence.
33. PW 2, the complainant testified that the appellant cut him with a panga on the head and both legs. PW 1 and PW 3 who saw him shortly after the incident confirmed that they saw the deep cut wounds on the complainant. PW 5, Dr. Mwanaidi Abdallah said that the complainant sustained deep cuts on the skull, top of the head and back of the head, deep cut on the left side lower jaw and deep cuts on both legs. The injuries were caused by a sharp object and were categorized as grievous harm.
34. Grievous harm is defined under section 4 of the Penal Code to mean;
“Any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health or which extends to permanent disfigurement or to any permanent or serious injury to any external and internal organ, membrane or sense.”
35. I am are satisfied that the complainant's injury amounted to grievous harm as defined under section 4 of the Penal Code above. The definition contains several ingredients which are contained in the offence of robbery with violence. One of the ingredients of the offence of robbery with violence under section 296(2) of the Penal Code is that the offender wounds, beats, strikes, or inflicts any other personal violence to any person immediately before or after the time of robbery.
36. In this case there was evidence that the appellant did wound and used personal violence to the complainant. I am satisfied that the complainant's injuries did amount to dangerous harm or serious injury to health both of which are ingredients contained in the definition of grievous harm which is minor and cognate to the offence of robbery with violence. In the case of Chelule & another v Republic [2024] KEHC 1866 (KLR) the issue of the offence of grievous harm being minor and cognate to that of robbery with violence is extensively discussed and I am persuaded to follow the reasoning therein.
37. Section 179(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya provides:-
“179(1). When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved he may be convicted of the minor offence although he was not charged with it.”
(2). When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it”.
38. In the case of Umuro Adan Doti v Republic [2008] KECA 221 (KLR) the appellant had been charged with robbery with violence but the fact of theft had not been proved and the Court of Appeal found that by dint of section 179 of the Criminal Procedure Code the subordinate court or the High Court on appeal could have convicted the appellant of any minor and cognate offence to the offence of aggravated robbery established by the facts. (See also the case of Lawrence Omondi Otieno v Republic [2007] KECA 279 (KLR) where a similar verdict was reached by the Court of Appeal). In the Umuro case the Court of Appeal concluded that:
“In the result, the appeal is allowed to the extent that the conviction for offence of robbery with violence is quashed and the sentence of death set aside and in lieu therefor we substitute a conviction for causing grievous harm to Medina Ramata contrary to Section 234 of the Penal Code and sentence the appellant to 15 years imprisonment to take effect from 15th February, 1999 when the appellant was convicted and sentenced by the magistrate.”
39. I am well guided by this decision. In the present case, I find that the evidence disclosed the offence of causing grievous harm contrary to section 234 of the Penal Code which is a minor and cognate offence to that of robbery with violence.
40. Consequently, under section 354(3)(a)(ii) of the Criminal Procedure Code, I hereby alter the conviction on robbery with violence, set aside the death sentence and hereby substitute the conviction with causing grievous harm contrary to section 234 of the Penal Code. I hereby sentence the appellant to serve 10 years imprisonment from the date when he was charged before the trial court on 9/9/2021.
41. The upshot of the above reasons is that the appeal succeeds partially to the extend of altering the offence with which the appellant was convicted as above.
42. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered in open court at Kwale this 23rd day of January 2025 in the presence of:
The appellant in person from Shimo la Tewa prison.
N/Aby counsel for the appellant.
Ms Vallerie for the respondent.
Johnson court assistant.
ANDAYI W. FRANCIS
JUDGE