[2000] KEHC 99 (KLR)
The Court held that although the magistrate incorrectly relied on section 179 of the Criminal Procedure Code to convict the appellant of indecent assault when charged with attempted defilement, the two offences are cognate, and section 186 of the Criminal Procedure Code properly applies. The facts as presented...
Source-derived case information.
- Citation
- [2000] KEHC 99 (KLR)
- Parties
- Appellant: Bwana Kombo Muhati; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 83 of ??
- Procedural Posture
- Criminal Appeal / Second Appeal From High Court Judgment Affirming Conviction
- Outcome
- appeal dismissed; conviction and sentence affirmed
- Judges
- AM Akiwumi, EO O'Kubasu
- Legal Topics
- Indecent Assault, Attempted Defilement, Cognate Offences, Criminal Procedure, Conviction on Alternative Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bwana Kombo Muhati
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From High Court Judgment Affirming Conviction
Legal Issues
- 1 Whether the magistrate was correct in convicting the appellant of indecent assault under section 144(1) of the Penal Code when charged with attempted defilement under section 145(2).
- 2 Whether section 179 or section 186 of the Criminal Procedure Code applies to the substitution of charges in this context.
Ratio Decidendi
The Court held that although the magistrate incorrectly relied on section 179 of the Criminal Procedure Code to convict the appellant of indecent assault when charged with attempted defilement, the two offences are cognate, and section 186 of the Criminal Procedure Code properly applies. The facts as presented before the magistrate clearly proved the offence of indecent assault, and the conviction was therefore proper. The superior court was correct in confirming the conviction, and there was no point of law warranting interference by the appellate court. Accordingly, the appeal was dismissed.
Court Disposition
appeal dismissed; conviction and sentence affirmed
Orders
- The appeal is dismissed.
- The conviction for indecent assault under section 144(1) of the Penal Code is affirmed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MOMBASA (CORAM: OMOLO, AKIWUMI & O'KUBASU, JJ.A.) CRIMINAL APPEAL NO. 83 OF 2000
BETWEEN
BWANA KOMBO MUHATI .................... APPELLANT AND REPUBLIC .......................................... RESPONDENT
(Appeal from a judgment of the High Court of Kenya at Mombasa (Commissioner Shah) dated 7th June, 2000 in H.C.CR.A. NO. 77 OF 2000) ********************
JUDGMENT OF THE COURT
This being a second appeal, only matters of law arise for our consideration. The appellant was originally charged with attempted defilement of a girl contrary to section 145(2) of the Penal Code but in the end the magistrate found him guilty of indecent assault of the girl under section 144(l) of the Penal Code. The magistrate said he was doing so under section 179 of the Criminal Procedure Code, but that was of course not correct because, as Mr. Ouma for the appellant correctly points out, the two offences are not minor to each other. But the two offences are clearly cognate and section 186 of the Criminal Procedure Code provides for the situation the magistrate was dealing with. The facts put before him clearly proved the offence of indecent assault and he was right to convict the appellant of that charge.
The superior court confirmed that conviction and there is really no point of law worth our consideration. The appeal is ordered to be and is hereby dismissed.
Dated and delivered at Mombasa this 24th day of July, 2000.
R. S. C. OMOLO
...............
JUDGE OF APPEAL
A. M. AKIWUMI
...............
JUDGE OF APPEAL
E. O'KUBASU
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR