[2003] KEHC 398 (KLR)
The court found that the charge against the appellant was fundamentally defective as it failed to disclose an offence under section 313 of the Penal Code, since it alleged obtaining money from an institution rather than a person, which is a necessary element of the offence. Furthermore, the particulars of the charge...
Source-derived case information.
- Citation
- [2003] KEHC 398 (KLR)
- Parties
- Appellant: Alice Wanjiru Gichanga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 357 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Defective Charge, Plea Taking, Interpretation Rights, Obtaining by False Pretences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Wanjiru Gichanga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge against the appellant was defective and failed to disclose an offence.
- 2 Whether the appellant was properly called to plead to the charge and whether the plea was unequivocal.
- 3 Whether the absence of an interpreter for the appellant rendered the proceedings unfair.
Ratio Decidendi
The court found that the charge against the appellant was fundamentally defective as it failed to disclose an offence under section 313 of the Penal Code, since it alleged obtaining money from an institution rather than a person, which is a necessary element of the offence. Furthermore, the particulars of the charge were vague, referring to 'diverse dates' and thus creating a duplex charge, which is impermissible in criminal proceedings. The court also noted that the appellant was not properly called to plead to the charge, and the plea was not unequivocal. These procedural and substantive defects rendered the conviction illegal and unsafe. Consequently, the court quashed the conviction...
Court Disposition
appeal_allowed
Orders
- The conviction against the appellant is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO.357OF 2002
(From original conviction and sentence in Criminal
Case No.3199/2002 of the Principal Magistrate’s
Court at NYAHURURU – D.K. NGOMO(P.M)
ALICE WANJIRU GICHANGA…………………....…..APPELLANT
VERSUS
REPUBLIC………… ……………………………….RESPONDENT
J U D G M E N T
The Appellant’s Counsel filed an application for bond pending appeal and a petition of appeal. The Appellant’s advocate urged the court to admit the appeal instead so that he could argue it rather than the bond pending appeal which the Learned State Counsel did not oppose.
The ground in the appeal was that the plea was not unequivocal on reasons:-
(1) That the charge against the Appellant was defective.
(2) That the Appellant was not asked to plead to the facts of the case as put forward by the Prosecution and
(3) That the Appellant was not given the services of an interpreter to the Kikuyu language which she understood.
That despite those reasons the court went ahead to convict the Appellant and to pass sentence.
The Learned State Counsel did not oppose the appeal against the conviction and concluded that the plea was not unequivocal.
I have carefully scanned through the proceedings conducted by the Lower Court and the charge facing the Appellant. The charge is defective and does not disclose an offence. Basic reason for this finding is that the Appellant was charged with the offence of Obtaining Money by False Pretences from an Institution. The charge of Obtaining contrary to S.313 of the Penal Code such as the one facing the Accused would not be constituted unless the alleged offence and the alleged obtaining is from a person. The offence of obtaining by false pretences is not an offence unless the alleged false pretence acts on the mind of a person causing them to take an action to their detriment. In the particulars of the charge against the Accused, the money is allegedly obtained from an Institution i.e. Kikuyu Sub- Branch Association. The Association is inanimate and has no mind of its own and is therefore perceived incapable of anything or act.. There must have been a person from whom the money was obtained and that is the person whose name should have been included in the particulars of the charge.
The charge had also another defect in the particulars on the date(s) of the alleged offence. Each taking or obtaining constitutes a separate charge and offence. To charge the Appellant of obtaining on "diverse dates” as the charge reads was totally defective and the charge ought to have been rejected by the court for being duplex and also for not disclosing an offence.
I have also noted that the Appellant was not called to plead to the charge. That is however a secondary issue as the charge was totally defective and the Appellant ought not to have pleaded to it.
On these grounds I do find that the conviction entered against the Appellant in the court was illegal and unsafe and cannot be allowed to stand.
I allow the appeal by quashing the conviction and setting aside the sentence. I order that the Appellant be set at liberty unless she is otherwise lawfully held.
Orders accordingly.
Dated and Delivered at Nakuru this 18th day of February. 2003.
JESSIE LESIIT
JUDGE