Anthony Mwangi Wakaza v Republic [2004] KECA 131 (KLR)

IN THE COURT OF APPEAL AT NAIROBI (CORAM: OMOLO, TUNOI & O’KUBASU, JJ.A.) CRIMINAL APPEAL NO. 21 OF 2003

BETWEEN

ANTHONY MWANGI WAKAZA…......………………………………..APPELLANT

AND

REPUBLIC………………………………………….……………… RESPONDENT

(Appeal from a Judgment of the High Court of Kenya at Nairobi (Mr. Justice Osiemo & Oguk) dated 31. 07. 1998

in

H.C.CR.A. NO. 1065 OF 1997) ************************

JUDGMENT OF THE COURT

The appellant was convicted on a charge of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death although the appellant had told the trial court that he was aged 17 years. On the appeal to the High Court the High Court substituted the conviction of robbery with violence with simple robbery contrary to section 296(1) of the Penal Code and sentenced the appellant to ten (10) years imprisonment.

The appellant now comes to us by way of second appeal. Mr. Mbugua for the appellant has told us that he is appealing against the sentence only.

It is to be noted that before being sentenced by the trial court the appellant had said that he was aged only 17 years. For that reason the trial court made an order to the effect that the appellant’s age be assessed.There was some delay in obtaining the medical report on the appellant’s age. It would appear the trial court became impatient and hence proceeded to sentence the appellant to death in absence of a medical report as to his age. That was an error on the part of the trial court.

Then when the appellant’s appeal was considered by the High Court the conviction on robbery with violence was substituted with simple robbery contrary tosection 296(1) of the Penal Codeand appellant sentenced to ten (10) years imprisonment. With due respect to the two courts below the sentence passed on appellant was illegal. It therefore follows that the appeal is allowed and we set aside the sentence of ten years imprisonment and four strokes of the cane and substitute them with such sentence as will result in the appellant being released from prison forthwith.

Dated and delivered and Nairobi this 21st day of April, 2004.

R.S.C. OMOLO

……………………….

JUDGE OF APPEAL

P.K. TUNOI

………………………….

JUDGE OF APPEAL

E.O. O’KUBASU

…………………………..

JUDGE OF APPEAL

I certify that this is a

true copy of the original. DEPUTY REGISTRAR