[2003] KEHC 37 (KLR)
The court held that the charge sheet failed to allege that the sexual act was unlawful, an essential element under Section 145(1) of the Penal Code. This omission rendered the charge defective and incapable of supporting a conviction. The trial court erred in convicting the appellant on a charge that did not...
Source-derived case information.
- Citation
- [2003] KEHC 37 (KLR)
- Parties
- Appellant: Alfred Kiptanui Kangogo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 407 of 2000
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed; sentence set aside; retrial ordered
- Legal Topics
- Defilement, Drafting of Charge Sheets, Unlawful Carnal Knowledge, Criminal Procedure, Quashing of Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Alfred Kiptanui Kangogo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge as drafted disclosed an offence known to law.
- 2 Whether the omission of the word 'unlawful' in the particulars of the charge invalidated the conviction.
- 3 Whether the trial court erred in convicting the appellant on a defective charge sheet.
Ratio Decidendi
The court held that the charge sheet failed to allege that the sexual act was unlawful, an essential element under Section 145(1) of the Penal Code. This omission rendered the charge defective and incapable of supporting a conviction. The trial court erred in convicting the appellant on a charge that did not disclose an offence known to law. Consequently, the conviction was quashed and the sentence set aside. However, given the seriousness of the offence and the fact that the appellant had already served two years of a potential fourteen-year sentence, the court ordered a retrial before the lower court.
Court Disposition
conviction quashed; sentence set aside; retrial ordered
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
Criminal Appeal 407 of 2000
(From original conviction and sentence in Criminal Case No.2501/2000 of the Chief Magistrate’s Court at NAKURU - W.K. TUIYOT(C.M.)
ALFRED KIPTANUI KANGOGO…….............................................................……………APPELLANT
VERSUS
REPUBLIC………………......................................................…………………………..RESPONDENT
J U D G M E N T
The Appellant was charged with DEFILEMENT OF A GIRL contrary to Section 145(1) of the Penal Code. The particulars of the charge were:-
“On the 13th day of November, 2000 at [particulars wittheld] in Nakuru District of the Rift Valley Province, had Carnal knowledge of [name witheld] a girl under the age of fourteen years.
“The Appellant pleaded guilty to the said charge on the prosecution giving the facts of the case, the Appellant responded thus:-
“That is what happened.”
The facts in part were:-
“The accused later went there anddefiled the child then he released her,”
With due respect to the trial court the charge before the court did not disclose an offence known in law.
Section 145(1) of the Penal Code defines defilement thus:-
“Any person who unlawfully and carnallyknows any girl under the age of 14 yearsis guilty of a felony and is liable to imprisonment with hard labour for 14 yearstogether with corporal punishment.”
This definition makes it clear that it is the act of carnally knowing a girl unlawfully that is very vital to the charge.
The charge of defilement must allege in its particulars that the sexual act was unlawful. The particulars of the offence of defilement the appellant was charged with and convicted did not state that the defilement was unlawful. That charge did not disclose an offence known to law and the Appellant was wrongly convicted on it. The trial court ought to have rejected the charge under S.89(5) of the Criminal Procedure Code or directed the prosecution to amend it.
As it were, there was no charge before the court and the resultant conviction being wrong cannot be allowed to stand. There were other errors in the case but that of the charge being the main one I ignore the rest. The conviction is accordingly quashed and the sentence set aside.
The Appellant has served two years imprisonment. The offence calls for 14 years. Being a serious charge I will order for a retrial before the lower court.
Orders accordingly.
Dated and delivered at Nakuru this 13th day of March, 2003.
JESSIE LESIIT
JUDGE