[2011] KEHC 3141 (KLR)
The court found that the charge sheet was fatally defective because it cited only section 8(3) of the Sexual Offences Act, which prescribes the sentence, and omitted section 8(1), which creates the offence of defilement. This omission meant the appellant was not properly charged with the offence as required by law....
Source-derived case information.
- Citation
- [2011] KEHC 3141 (KLR)
- Parties
- Appellant: Antony Sengeza; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 271 of 2009
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- conviction quashed; retrial ordered
- Judges
- JV Juma
- Legal Topics
- Defective Charge Sheet, Sexual Offences, Defilement, Criminal Appeal Procedure
- 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
Antony Sengeza
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the charge sheet was fatally defective for omitting reference to section 8(1) of the Sexual Offences Act.
- 2 Whether a conviction and sentence based on a defective charge sheet can stand.
- 3 Whether a retrial should be ordered after quashing the conviction.
Ratio Decidendi
The court found that the charge sheet was fatally defective because it cited only section 8(3) of the Sexual Offences Act, which prescribes the sentence, and omitted section 8(1), which creates the offence of defilement. This omission meant the appellant was not properly charged with the offence as required by law. As a result, the conviction and sentence based on such a defective charge sheet were null and void. The court quashed the conviction and set aside the sentence. However, considering the seriousness of the offence, the sufficiency of the prosecution evidence, and the fact that the appellant had served only a small portion of the sentence, the court found that a retrial would not...
Court Disposition
conviction quashed; retrial ordered
Orders
- The conviction is quashed and the sentence set aside.
- A retrial is ordered before the Resident Magistrate, Kwale Law Courts.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 271 OF 2009
(From Original Conviction and Sentence in Criminal Case No.782 of 2008 of the Principal Magistrate’s Court at wale: A.M. Obura (Mrs.) – R.M.)
ANTONY SENGEZA ......................................... APPELLANT
VERSUS
REPUBLIC ...................................................... RESPONDENT
JUDGEMENT
The Appellant ANTONY SENGEZA, has filed this appeal to challenge his conviction on a charge of DEFILEMENT CONTRARY TO SECTION 8(3) OF THE SEXUAL OFFENCES ACT 2006. The learned trial magistrate after hearing the evidence proceeded to convict the Appellant on 1st December 2009 and thereafter sentenced him to serve fifteen (15) years imprisonment.
MR. ONSERIO, learned State Counsel has conceded the appeal on the basis that the charge sheet as framed was fatally defective. I have examined the said charges and I am inclined to agree with the learned State Counsel. The Appellant was charged with contravening S. (3) of the Sexual Offences Act. This section only provides for the sentence. The definitive section which creates the offence of Defilement is S. 8(1) which was not referred to at all in the charge sheet. To omit S. 8(1) does render the charge fatally defective. The charge as properly framed ought to have read “Defilement of a Girl contrary to S. 8(1) as read with S. 8(3) of the Sexual Offences Act”. Failure to frame the charge in this manner renders the charge sheet fatally defective. A conviction and sentence flowing from a defective charge cannot stand. As such I find this conviction null and void and I do quash the same. The subsequent 15 year sentence is also set aside.
Mr. Onserio has asked the court to order a re-trial in the matter. The offence of Defilement is undoubtedly serious since it involves a young life. The prosecution did avail weighty evidence. The trial court failed to exercise due vigilance in accepting a defective charge. The Appellant has only served 1½ years of a 15 year term. A re-trial at this point will not cause undue prejudice. For all the above reasons I do order a retrial in this matter. The Appellant to be produced before the Resident Magistrate, Kwale Law Courts on 11th April 2011 for fresh plea to be taken.
Dated and Delivered in Mombasa this 6th day of April 2011.
M. ODERO
JUDGE
In the presence of:
Appellant in person
Mr. Onserio for State