MOSES GITONGA WAIRAGU, SAMWEL KINYUA KARIUKI & CHARLES MWANGI GITAU V. REPUBLIC

JUDGMENT OF THE COURT

The magistrate had tried the appellants on a charge of robbery with violence under section 296 (2) of the Penal Code but in the judgment the appellants were convicted of the offence of simple robbery under section 296 (1) of the Penal Code. They appealed to High Court against the conviction and sentence and when admitting the appeal to hearing, Rimita, J, as he then was, directed that the appeals be heard by a single Judge. That was obviously because the appellants had been convicted of the lesser charge of simple robbery under section 296(1) of the Penal Code. The practice of the High Court, based on the provisions of section 359 (1) of the Criminal Procedure Code is that appeals by persons convicted under section 296 (2) are heard by two Judges. We think Mr Justice Visram was not justified, sitting all by himself, in changing the conviction from section 296 (1) to one under section 296 (2) of the Penal Code. If Visram, J, thought he was going to do so, he ought …