[2006] KEHC 393 (KLR)
The court found that the charge sheet was fatally defective for failing to allege that the act was 'unlawful,' a necessary element under section 145(1) of the Penal Code. This omission rendered the conviction unsafe. Additionally, the Resident Magistrate lacked jurisdiction to impose a sentence of 45 years, as...
Source-derived case information.
- Citation
- [2006] KEHC 393 (KLR)
- Parties
- Appellant: Daniel Burure; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 206 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held.
- Judges
- K Bauni
- Legal Topics
- Defective Charge Sheet, Jurisdiction of Magistrate, Sentencing Illegality, Defilement Offence, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Burure
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge sheet was defective for omitting the word 'unlawful' in the particulars of the offence.
- 2 Whether the Resident Magistrate had jurisdiction to impose a sentence of 45 years for the offence charged.
- 3 Whether the conviction and sentence could stand in light of the identified defects.
Ratio Decidendi
The court found that the charge sheet was fatally defective for failing to allege that the act was 'unlawful,' a necessary element under section 145(1) of the Penal Code. This omission rendered the conviction unsafe. Additionally, the Resident Magistrate lacked jurisdiction to impose a sentence of 45 years, as section 7(2)(a) of the Criminal Procedure Code limits such magistrates to a maximum of seven years for offences not specifically excepted, and defilement is not one of those exceptions. The trial magistrate also failed to clarify whether the conviction was on the main or alternative charge. Given these fundamental defects, the court quashed the conviction and set aside the sentence....
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held.
Orders
- The appeal is allowed.
- The conviction of the appellant is quashed.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISII
CRIMINAL APPEAL 206 OF 2004
DANIEL BURURE ……………………………………. APPELLANT
VERSUS
REPUBLIC …………………………….……………. RESPONDENT
(From original conviction and sentence of the Resident Magistrate’s Court at Kehancha in Criminal Case No.719 of 2004 – SEREM M. K. K. ESQ., R.M)
JUDGMENT
The appellant DANIEL BURURE was convicted by the Resident Magistrate Kehancha for the Offence defilement of a girl between the age of 16 years contrary to S.145(1) of The Penal Code. He was sentenced to 45 years imprisonment.
Mr. Abisai submitted that the charge was defective. There was no word “unlawful” in the particulars of the charge sheet.
Further he pointed out that the appellant was charged with an alternative count of indecent assault. The trial magistrate only said he convicted the appellant as charged.
He further submitted that the sentence of 45 years was excessive.
Mr. Kemo the learned Senior State Counsel conceded to the appeal and said indeed the charge was defective. He asked court to order for a retrial.
Indeed the charge of defilement was defective. S.145 (1) of the Penal Code is clear. It states:
“Any person who unlawfully and carnally knows any
girl under the age of 16 years is guilty of a felony
and liable to imprisonment with hard labour for life.”
It is clear that the charge sheet has to clearly indicate that the act was unlawful and that was missing in the charge sheet. The inclusion of such word is important because in the provisal of S.145(2) P.C. it is provided that one can carnally know a girl of that age and yet would not be guilty.
I therefore concur with the counsel for the appellant and the State Counsel that the charge sheet as it is defective and on that score the appeal succeeds.
Also the trial magistrate was not candid if he convicted the appellant on the main charge or the alternative charge. If it was the main charge then he should have gone further and state that he was not making any finding on the alternative charge. This was not done.
There is yet another error committed by the magistrate. He sentenced the appellant to 45 years imprisonment. He was of rank of Resident Magistrate.
S.7(2) (a) of C.P.C. clearly provides that a Resident Magistrate can impose a sentence of up to seven years except in offences under S.278, 308(1) or 322 of the Penal Code where he can impose any sentence prescribed by the law. S.145(1) P.C. is not one of those exception sentences and as such the Resident Magistrate had no jurisdiction to impose a sentence of 45 years. The sentence was illegal.
Mr. Kemo asked Court to Order a retrial. However to do so would be futile. The court has found the charge sheet is defective. I can’t order he be retrialed on that defective charge.
In the circumstances the appeal is allowed. I quash the conviction of the appellant and set aside the sentence imposed. He be set at liberty forthwith unless otherwise legally held.
Dated 26th October 2006
KABURU BAUNI
JUDGE
Delivered in presence of
cc. Mobisa
Mr. Chirchir for State.
Appellant P.I.P.
KABURU BAUNI
JUDGE