[2008] KEHC 740 (KLR)
The court found that the charge sheet was fatally defective because it alleged that the appellant and another jointly defiled the complainant, which is legally impossible as each act of defilement must be committed individually and charged as such. The defect in the charge sheet rendered the conviction and sentence...
Source-derived case information.
- Citation
- [2008] KEHC 740 (KLR)
- Parties
- Appellant: Cosmus Kipyegon Kibor; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 72 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- FI Koome
- Legal Topics
- Defilement, Charge Sheet Defects, Joint Offenders, Sexual Offences, Conviction and Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cosmus Kipyegon Kibor
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge of jointly defiling a complainant is legally sustainable under Kenyan law.
- 2 Whether the conviction and sentence based on a defective charge sheet should be upheld.
Ratio Decidendi
The court found that the charge sheet was fatally defective because it alleged that the appellant and another jointly defiled the complainant, which is legally impossible as each act of defilement must be committed individually and charged as such. The defect in the charge sheet rendered the conviction and sentence unsafe. The court relied on binding precedent from the Court of Appeal, which held that joint charges for sexual offences of this nature are not sustainable. Consequently, the appeal was allowed, and the conviction and sentence were set aside.
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
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal 72 of 2007
COSMUS KIPYEGON KIBOR……………………………………APPELLANT
VERSUS
REPUBLIC…………………………………...……….…………RESPONDENT
JUDGMENT
The appellant Cosmus Kipyegon Kibor together with another were, jointly charged with the offence of defilement of a girl under the age of 16 years contrary to section 145(1) of the Penal Code. The particulars of the offence state that on the nights of 8th and 9th days of April 2006 at T[particulars withheld] Village in Baringo District within Rift Valley Province, jointly had a carnal knowledge of CC a girl under the age of 16 years. They also faced an alternative charge of indecent assault on females contrary to section 144(1) of the Penal Code. The particulars of the alternative charge state that on the nights of 8th and 9th days of April 2006 at T[particulars withheld]Village in Baringo District within Rift Valley Province, jointly unlawfully and indecently assaulted CC a girl under the age of 16 years by touching her private parts.
They both pleaded not guilty to both charges. After a full trial they were found guilty, convicted, and sentenced to twenty (20) years imprisonment. Being dissatisfied with the conviction and sentence, the appellant who was the 2nd accused person before the trial court has appealed. During the hearing of this appeal, the State conceded to the appeal on the grounds that the charge was defective. The appellant was charged with another of jointly defiling the complainant which is impossible for two men to simultaneously have carnal knowledge of a female.
In the case of Paul Mwangi Murunga vs Republic, Court of Appeal Criminal Appeal No. 35 of 2006 (Nakuru) the Court of Appeal held that:
“This court has repeatedly said that two or three men or whatever may be their number cannot jointly at the same time rape one woman. Each one of the men commits the act of rape individually and is followed by the next man. We are unable to appreciate how two or three men can at the same time “jointly” enter or try to enter her genital organ. The act is committed by each one of them alone and if there be two, three or four of them each must be charged on a separate count of rape.”
In view of this defect in the charge sheet, this appeal succeeds. 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.
Judgment read and signed on 14th November, 2008
M. KOOME
JUDGE