[2013] KEHC 2505 (KLR)
The court found that the charge sheet was fatally defective as it cited the wrong commencement year for the Sexual Offences Act and specified a date not supported by the complainant's evidence. The complainant did not mention the specific date alleged in the charge, and the law cited was not in force in the year...
Source-derived case information.
- Citation
- [2013] KEHC 2505 (KLR)
- Parties
- Appellant: Akiba Chembe Mwaravino; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 237 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- GO Shikwe
- Legal Topics
- Sexual Offences, Defective Charge Sheet, Indecent Act With Child, Statutory Commencement, Conviction Quashed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Akiba Chembe Mwaravino
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge sheet was fatally defective due to incorrect citation of the law and dates.
- 2 Whether the conviction and sentence could stand in light of the defective charge sheet.
Ratio Decidendi
The court found that the charge sheet was fatally defective as it cited the wrong commencement year for the Sexual Offences Act and specified a date not supported by the complainant's evidence. The complainant did not mention the specific date alleged in the charge, and the law cited was not in force in the year stated. The state conceded these defects. As a result, the conviction was quashed and the sentence set aside, as a conviction cannot stand on a fatally defective charge sheet.
Court Disposition
appeal_allowed
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 237 OF 2011
AKIBA CHEMBE MWARAVINO …............................….…..…..APPELLANT
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
(From the Original Conviction and Sentence in the Criminal Case No. 51 of 2011 of the Senior Resident Magistrate's Court at Mariakani Hon. Machage - SRM)
JUDGMENT
The Appellant AKIBA CHEMBE MWARAVINO was Convicted and Sentenced to ten (10) years imprisonment for a charge of indecent act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2004.
The appeal is conceded on the grounds that the charge reads that the indecent act of touching the complainants private parts was on the 4th November, 2010.
Secondly, that the sexual offences Act came into commencement in the year 2006 but not year 2004 as indicated in the charge itself.
A perusal of the record does indicate that the complainant never mentioned the date of 4th November, 2010 as when she was indecently assaulted. She does indicate the month of November as the period in which the Accused/Appellant started seducing her.
A week later she had sexual intercourse with the Appellant at the office. She further told the court that she had sexual intercourse with the Appellant five times.
The charge sheet should have read,
“On diverse dates as the exact dates seem to have escaped the complaints memory.”
I have also noted as conceded by learned state counsel that the Appellant had been charged under the wrong law.
The sexual offences Act came into commencement in the year 2006 not 2004 as indicated in the charge sheet. I find the charge to be fatally defective.
The Conviction is quashed and Sentence set aside. He is set at liberty unless otherwise lawfully held.
Judgment dated and delivered in open Court this 3rd day of September, 2013.
….................
M. MUYA
JUDGE
3RD SEPTEMBER, 2013
In the presence of:-
Learned state Counsel Miss Ogweno
The Appellant
Court clerk Musundi