[2008] KEHC 1975 (KLR)
The court found that the charge as preferred against the appellant did not disclose any offence known to law and was not supported by the evidence presented at trial. The evidence indicated that the proper charge should have been under section 367(a) of the Penal Code, not section 308(3)(b). Both the appellant and...
Source-derived case information.
- Citation
- [2008] KEHC 1975 (KLR)
- Parties
- Appellant: Brian Kihanya Terence; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 47 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- FI Koome
- Legal Topics
- Preparation to Commit Felony, Defective Charge Sheet, Conviction and Sentence, Appeal Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Kihanya Terence
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge as framed against the appellant disclosed an offence under the law.
- 2 Whether the conviction and sentence were sustainable based on the evidence and the charge presented.
Ratio Decidendi
The court found that the charge as preferred against the appellant did not disclose any offence known to law and was not supported by the evidence presented at trial. The evidence indicated that the proper charge should have been under section 367(a) of the Penal Code, not section 308(3)(b). Both the appellant and the State agreed that the charge was fatally defective. Consequently, the conviction and sentence imposed by the trial court could not stand and were set aside. The appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
appeal_allowed
Orders
- The conviction and sentence imposed by the trial court are set aside.
- Unless otherwise lawfully held, the appellant is to be set at liberty forthwith.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal 47 of 2008
BRIAN KIHANYA TERENCE……...………………………………APPELLANT
VERSUS
REPUBLIC………..……….………………………………………RESPONDENT
JUDGMENT
The appellant together with others two of whom were acquitted were charged with the offence of preparation to commit a felony contrary to section 308 (3) (b) of the penal code. The particulars of the offence state that on the 25th day of July 2007 at about 9. 20 p.m. at Marigat Shopping Centre in Baringo District within Rift Valley Province jointly were found in a building namely Saisai Enterprise shop at night with intent to commit a felony therein to wit forging of currency notes. After the trial the appellant was convicted and sentenced to five (5) years imprisonment. Being dissatisfied with the conviction and sentence the appellant appealed.
The State conceded to this appeal and rightly so, for reasons that the charge against the appellant was defective. This being a first appeal this court is mandated to re evaluate the evidence before the trial court and arrives at its own independent determination of whether or not to allow the appeal. The evidence that led to the conviction and sentence of the appellant was principally adduced by three prosecution witnesses.
According to the prosecution’s case the appellant were arrested in the course of trying to forge currency notes. They were arrested with blank papers and some real currency notes and some other paraphernalia which would be taken to resemble or pass for a special paper that is used for making a currency note.
Upon consideration of the evidence before the trial court, and the charge that the Appellant faced, the charge as preferred against the appellant does not disclose the offence that was committed. I am in agreement with counsel for the appellant and the counsel for the State that the charge is fatally defective. The charge is not supported by the evidence on record. Going through the evidence on record, the proper charge against the appellant would have been a charge contrary to section 367(a) and not the particular charge before the court.
Without belabouring the matter any further, this appeal should be allowed. The conviction and sentence imposed by the trial court is hereby set aside unless the appellant is otherwise lawfully held, he is to be set at liberty forthwith.
It is so ordered.
Judgment read and signed on 24th day of July, 2008
M. KOOME
JUDGE