NAME:DIANA WANGAMATI

REG NO:LSS201-C002-0144/2020

UNIT:CRIMES

LECTURER: LOREKO OBONYO

Robbery and robbery with violence are classified as aggravated theft offences.They are a combination of
elements of offences to a person and property in theft and assault. The defination of robbery under
Section 295 of the penal code is any person who steals anything, and, at or immediately before or
immediately after the time of stealing it, uses or threatens to use actual violence to any person or
property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being
stolen or retained, is guilty of the felony termed robbery.

Simple robbery under Kenyan law was not sufficiently distinguished by Harris J. in Gilbert v Republic1
The appellant refused to pay for a meal and when the victim asked for the money, he became violent
to effect and tried to escape. Section 296(1) of the Penal Code punishes the robber who “uses or
threatens to use actual violence to any person or property in order to obtain or retain the thing stolen.”
Section 296(2) (as it was then) declared that “if he uses any personal violence to any person” he is liable
to the punishment according to that subsection. A simple robbery is comprised of; theft which is the act
of taking property from the owner using violence or the threat of violence. In Joseph Kariuki v
Republic2, the victims car stopped and the appellants came and demanded money while brandishing
their arms, but she refused and well wishers came to her assistance, when she appealed it was held by
the Court that because nothing was taken, the actus reus was absent and their charge was reduced to
attempted robbery.

The other element of robbery is violence factor under section 295 of the penal code shows a connection
between theft and violence, it has to be immediately before or after, whereby the threat on property
has been snatched without establishing assault, it is not considered as robbery. In Kenan Owuori &
another v Republic3the appellants posed as police and went to the victims store and forced him into a
car and took him away where they demanded for money after pinning him down and slapping him. It
was held by the court that, there was sufficient evidence to support robbery due to the actual violence.

Robbery with violence is defined in section 296(2) of the Penal Code. Robbery with violence is
committed where the offender while committing the robbery with the intention to steal he commits on
or more of the following acts:

(a) is armed with any dangerous or offensive weapon or instrument;

(b) is in the company of one or more persons:

(c) immediately before or immediately after the time of the assault he beats, strikes or uses any
personal violence to the person

In the case of Wamai v Republic4 the court of Appeal held that a person commits the offence of robbery
with violence with an intention to steal and he commits one or more of the following acts is armed with

1
(1971) EALR 51
2
(1985) KLR 74
3
(2016) KLR 113
4
(2003) 1 EALR 353
a dangerous or offensive weapon or instrument is in the company with one or more persons or
immediately before or immediately after the time of the assault he beats, strikes or uses any personal
violence to the person.

The distinction between robbery and robbery with violence is established in Johana Ndung’u v
Republic5 the Court of Appeal sought to bring out the difference between robbery and robbery with
violence One of the assailants was armed with a stick with which he used to hit a tourist on various parts
of his body leaving him with injuries. The other assailant had a knife with which he threatened the
tourist while the third man took away the victims camera and ran away.The trial court found that the
accused had committed the offence and was convicted of robbery.The high court supported the
decision.The court of appeal differed with the lower courts opinions on that the proved facts established
the offence of robbery with violence under section 296(2).Under section 295 simple robbery results
when the accused uses violence or threatens to use violence. Section 296(2) lists the elements that
should be present for the offence to be robbery with violence.All three elements need not be present
for one to be convicted of robbery with violence

In Joseph Kaberia & 11 others v AG6, the court held that the two sections do not set out the aggravated
circumstances what will constitute a robbery and robbery with violence. The courts state that there’s
no clarity under section 295 and 296 of the penal code to lead the investigators on which facts will
constitute the offenses. The court further recognizes that the first two additional for robbery with
violence but doesn’t for the third addition under section 292(2)

In section 296(2) of the penal code states that one is guilty of the offence of robbery with violence if the
person is armed with an offensive weapon but doesn’t establish an offensive weapon but rather its use
that terms it as a dangerous weapon.

The death penalty for robbery with violence clearly infringes individual rights which some are written in
the constitutions of modern nation states7 Within African tribes, wrong doers were required to
compensate the victims. The concept of capital punishment was rare among the Gikuyu set out as
death sentence8 to a witchdoctor, morogi, who was executed by burning in banana leaves after a blood
ceremony. Colonial administration abolished customary criminal law and replaced it with punitive
approaches.9

5
(2003)1 EALR 197

6
(2010) eKLR
7
Supra note 6 p. 9

8
Jomo Kenyatta (2002: 227-228) explains that “If two men were engaged in a fight and one was killed then
because he acted in self defence the murderer had the sympathy and respect of the community.” A murdered
person’s family took up arms and invaded the murderers homestead with the object of revenge killing. If this failed
there would be counter invasion and crops razed to the ground. Elders intervene and fix the compensation for loss
of life. A man was worth ten goats or cows or 100 sheep. A woman was 30 sheep or three cows.

9
J.S. Read (1964: 164-189) argues that customary criminal law persists post independence
Regarding the Torture Doctrine, nowadays, the definition of simple robbery 10for which a maximum
sentence of twenty years imprisonment11 provided, is reserved for unaccompanied robbers who use
force to retain the stolen item, but are neither armed nor hit their victim, whereas in robbery with
violence one’s convicted of death, it becomes unlawful when it concerns life and death, the difference in
sentencing between the two is unclear and unwarranted. In Stephen M’ Riungu and three others v
Republic 12gangsters raided the complainant’s store at 4.00a.m. They broke the door down, beat the
watchman up then stole several assorted toilet soap items. Ignoring the fact that in 1969 violent
robbery did not attract the mandatory death sentence, Zachaeus Chesoni JA’s held the amendment
conferring jurisdiction upon subordinate courts to pass the death sentence as not inconsistent with the
Kenyan Constitution. He noted that: “Section 74 does not concern itself with what courts may award
what penalties, but only with the nature of the punishment itself.” 13

The analomous mandatory sentence, ln Johanna Ndung’u v Republic32 Cockar CJ, Akiwumi and Shah JJA
recognized that there exists an anomaly in Kenyan law so that a person who is convicted for simple
robbery under section 296(1), and prefers an appeal faces a possibility that the appellate court may
enhance the conviction and reverse the imprisonment way by of substitution with the death sentence.
In that case two people, the use of the maximum punishment for relatively low level offences promotes
rather than deters violence. The offenders maybe inclined to murder possible witnesses or the victim to
avoid identification.14

The a state tends to enforce the violent robbery section to secure a conviction for murder ultimately
achieving the mischievous purpose of prosecuting homicide suspects before a subordinate court under
the guise that some item was stolen from the deceased. Instances that That “it is not the gravity of the
sanction, which serves to deter potential offenders; rather it is the foreseeability in the equality of
implementation of any prescribed punishment.” 15

Recommendations to reform the law of robbery and robbery with violence,

The Court of Appeal on Facts In Stephen M’ Riungu’s case suggests, “lIt is true that the accused may not
have a trial before a judge and the help of advocate provided by the state if he cannot afford one, but he
is afforded a right of appeal to the high court and then to court of appeal. So the proceedings and
judgment in the high court are scrutinized altogether by five judges (in the two courts) instead of three
and he is furnished by the state at its expense with an advocate in this court.” 16

10
Supra;

11
Increased by section 9 of Penal Code (Amendment) (Act 1 of 1976); however “together with corporal
punishment not exceeding twenty-eight strokes” was deleted by section 52 of Criminal Law (Amendment) Act no.
5 of 2003

12
(1982-88) 1 KAR at pg. 360.

13
Ibid. p 365.

14
the Attorney-General (1997: 77) (unpublished)

15
Supra Posner note 37.

16
Supra note 20.
Prosecutorial powers must be regulated, firstly, because either the police officers or the complainant
may have a malicious motive of harassing an accused. This is particularly possible where the trial is for
non-bailable crimes which eventually will lead to severe harm. 17 Secondly, because a police prosecutor
may not inclined with legislation as intended by the law. A state counsel should be bound by
professional ethics so that a charge sheet which discloses its face that killing has occurred ought to
attract a murder

Robbery and robbery with violence is a crime on which the criminal justice system has had little impact.
Imprisonment and capital punishment have not been deterrents. The solution lies in the distribution of
available resources,for instance, a young, unemployed, idle and fresh school leaver will gradually drift
into criminality in order to survive. The conditions of housing and poverty should be addressed to
provide communities with basic facilities of which people will not drift into criminal violence for survival.

In conclusion the law does not make it mandatory for the trial of (robbery with violence) to be by the
high court.” A reasonable man who has an option of which between the two offences to be charged
with will probably prefer to be charged with the more “serious” crime of murder than the “lesser”
crime of violent robbery so that he may benefit from all the advantages accruing from the procedural
safeguards.

BIBLIOGRAPHY.

1. Penal Code Cap 63 Laws of Kenya

17
Supra, note the deplorable condition of the Kenyan prison system