Rex v Murobie and Another (Confirmation Case No. 198 of 1942) [1942] EACA 83 (1 January 1942)

## CRIMINAL CONFIRMATION

BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

## REX. Prosecutor

## KIMENGENG ARAP MUROBIE AND KINDIYWA ARAP CHEMWOR. Accused.

## Confirmation Case No. 198 of 1942

Criminal Law-Robbery-Jurisdiction of First Class Subordinate Court and Supreme Court—Sections 289 and 290 Penal Code.

Two accused persons were convicted by a First Class Subordinate Court of robbery with violence.

*Held* (10-6-42).—That if two or more persons are charged with robbery or if any person or persons is or are charged with robbery while armed with a dangerous weapon or weapons or if actual violence is used in the robbery the Supreme Court alone has jurisdiction to try the case.

Accused absent, unrepresented.

Spurling, Crown Counsel, for the Crown.

ORDER.—The accused were charged with robbery with violence *contra* section 289 of the Penal Code. The particulars of the offence read: —

"Kimengeng arap Murobie and Kindiywa arap Chemwor on the 23rd day of December, 1941, at about 10 a.m. at Lessos in the Uasin Gishu District in the Rift Valley Province robbed Kithengi wa Katero of a sack, a shirt, a tin, and Sh. 800 in cash and at or immediately after the time of such robbery did use personal violence to the said Kithengi wa Katero."

Section 289 of the Penal Code covers two different offences, (1) robbery punishable by imprisonment for fourteen years, and (2) robbery with aggravation or violence punishable by imprisonment for life with or without corporal punishment. This is clear from section 290 of the Penal Code.

Section 4 of the Criminal Procedure Code provides that offences under the Penal Code may be tried by the Supreme Court or by any subordinate court by which such offence is shown in the fifth column of the First Schedule to be triable. The First Schedule shows that a Subordinate Court of the First Class has jurisdiction in respect of robbery punishable by imprisonment for fourteen years but that only the Supreme Court has jurisdiction in respect of the offence of "robbery with violence" punishable by imprisonment for life and corporal punishment. It would perhaps have been more understandable had the offence termed "robbery with violence" in the second column of the First Schedule been. termed "robbery with aggravation or violence". The difference between what one may perhaps for the purpose of differentiation term "simple robbery" which offence is triable by a First Class Subordinate Court and "robbery with aggravation or violence" which is triable by the Supreme Court alone is as follows: -

Simple Robbery occurs where a solitary individual unarmed with any offensive weapon or instrument steals and immediately before or immediately after the stealing *threatens* $\overrightarrow{t_0}$ 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.

Robbery with aggravation occurs where the person who steals, (1) is armed with a dangerous or offensive weapon or instrument, or $(2)$ is in company with one or more other person or persons and merely threatens to use violence.

Robbery with violence occurs where actual violence is used in the robbery.

Simple robbery alone is triable by a First Class Subordinate Court. Robbery with aggravation and robbery with violence can only be tried by the Supreme Court. It should be clear from the above that if two or more persons are charged with robbery or if any person or persons is or are charged with robbery while armed with a dangerous or offensive weapon or weapons or if actual violence is used in the robbery the Supreme Court alone has jurisdiction to try the case.

In this case not only were two persons charged with the robbery but actual violence was used. The First Class Magistrate therefore had no jurisdiction to try the case.

The convictions and sentences are set aside. We order the committal of the two accused for trial by the Supreme Court.

Note.—Jurisdiction in cases of robbery with violence contra section 289 Penal Code was conferred on Subordinate Courts of the first class by Ordinance 27/42 dated 23-12-42.