[2006] KEHC 2995 (KLR)
The court found that the charge sheet did not disclose the subject matter of the attempted robbery, specifically failing to identify any property as required by Section 137(c) of the Criminal Procedure Code. This omission was deemed fatal to the validity of the charge, rendering both the conviction and sentence...
Source-derived case information.
- Citation
- [2006] KEHC 2995 (KLR)
- Parties
- Appellant: Evans Masese Mose; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Judgment Date
- 2 February 2006
- Case Number
- ? 76 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed. Conviction quashed. Sentence set aside. Appellant to be set at liberty unless otherwise lawfully held.
- Judges
- LK Kimaru
- Legal Topics
- Defective Charge Sheet, Attempted Robbery, Identification of Property, Criminal Procedure, Conviction and Sentence
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Masese Mose
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge sheet was defective for failing to disclose the subject matter of the attempted robbery.
- 2 Whether the omission of property identification in the charge sheet was fatal to the conviction and sentence.
Ratio Decidendi
The court found that the charge sheet did not disclose the subject matter of the attempted robbery, specifically failing to identify any property as required by Section 137(c) of the Criminal Procedure Code. This omission was deemed fatal to the validity of the charge, rendering both the conviction and sentence unsustainable. The court agreed with the prosecution's concession that the defect in the charge sheet vitiated the entire proceedings, leading to the quashing of the conviction and setting aside of the sentence.
Court Disposition
Appeal allowed. Conviction quashed. Sentence set aside. Appellant to be set at liberty unless otherwise lawfully held.
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Criminal Appeal 76 of 2004
EVANS MASESE MOSE………………...................................……...…APPELLANT
VERSUS
REPUBLIC……………………….................................………….…..RESPONDENT
JUDGMENT OF THE COURT
The appellant was charged with attempted robbery contrary to Section 297(2) of the Penal code.
The particulars of the offence were given as follows:-
“On the 1st day of November 2003, at Saoset Village Kipkelion in Kericho District of the Rift Valley Province, jointly with others not before court, while armed with pangas attempted robbery of David Kipkemoi Chirchir and at or immediately before or immediately after the time of the attempted robbery used actual violence to the said David Kipkemoi Chirchir”.
He was tried, convicted and sentenced to death but was however aggrieved by the said conviction and sentence and preferred the present appeal. When the appeal came up for hearing, before the appellant could address us, Mr. Gumo Assistant Deputy Public Prosecutor told the court that he did not wish to support the conviction. He submitted that the subject matter of the attempted robbery was not disclosed in the charge sheet and that made the charge to be defective. We entirely agree with him. Section 137 of the Criminal Procedure Code sets out mandatory rules for framing of charges and information. Section 137(c) requires that any property in a charge or information be identified clearly. That was not done and such omission was fatal to the entire charge and the subsequent conviction and sentence. We allow the appeal, quash the conviction and set aside the sentence that was pronounced by the trial court. The appellant should be set at liberty forthwith unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED at Nakuru this 2nd day of February, 2006.
D. MUSINGA
JUDGE
2/2/2006
L. KIMARU
JUDGE
2/2/2006