Isau & Another v. R. Crim. App. 376/377-D-70; 23/10/70; Makame J.

 Isau & Another v. R. Crim. App. 376/377-D-70; 23/10/70; Makame J.

The appellants were convicted of robbery with violence c/s 286 of the Penal Code. The first appellant, aged 17, was sentenced to two years imprisonment with twenty four strokes whereas the second accused, aged 47, was given three years imprisonment without corporal punishment but ordered to be under police supervision for three years after his release from jail in view of his 13 previous convictions. It was amply established that on 2/3/70, when the complainant was walking along the road, he was invited by the second appellant to follow him and inspect the contents in a pouch which the second appellant had found. The complainant refused and they parted but suddenly the second appellant appeared from the bush and held the complainant on his loins and was then joined by the first appellant. The appellants took the complainant’s pouch containing Shs. 56/25 and when they returned it had only Shs. 36/25. The appellants were seen restraining the complainant by other passers by who clearly identified then as the culprits. It was contended that the appellants should have been convicted of simple theft. [Citing Bemeye v. R., (1968) H. C. D. 74]

Held: (1) “With respect, I am unable to agree. The facts of this case are different from those of the case the learned state attorney quoted – BEMEYE v. R. Mwanza Criminal Appeal No. 799 of 1967 (1968 H. C. D. 74) in which the assault was part of a generally belligerant behaviour which had nothing to do with the eventual theft. The evidence in the present case shows clearly that the appellants got the money through a combination of violence and trick. I agree there was not much violence but then violence is a matter of degree. The violence employed in particular case would, in my view, be relevant only in assessing the sentence. The appellants were obviously acting in concert when one of them pouched on the complainant. They then kept him

under their effective restraint before they took the pouch away. The complainant’s resistance which they overcame was what stood between them and the money. If threatening to use violence before stealing can be held to be enough to constitute robbery I an not persuaded why the use of a little violence should amount to only simple theft.” (2) [Obiter] “The records of previous convictions were not sent up with the file. For the guidance of the courts below such records form part of the proceedings and they should be sent up. They show the span of the convicts’ criminal career, the frequency with which he has resorted to crime, and punishment he got. These factors help is appellate court in deciding whether or not he sentence given in the court below is appropriate.” (3) Appeal dismissed.