[2007] KEHC 1737 (KLR)
The court found that the particulars of the charge did not support the offence of molestation but rather intimidation. Furthermore, the record did not show that the charges were read over and explained to the appellant before he was asked to plead, which is a mandatory requirement for a valid plea. Although there...
Source-derived case information.
- Citation
- [2007] KEHC 1737 (KLR)
- Parties
- Appellant: Feisal Ali; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 61 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed, sentence set aside, retrial ordered
- Legal Topics
- Plea Taking, Defective Charge, Molestation Offence, Intimidation Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Feisal Ali
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the particulars of the charge supported the offence of molestation as charged.
- 2 Whether the record showed that the charges were read over and explained to the appellant before plea was taken.
Ratio Decidendi
The court found that the particulars of the charge did not support the offence of molestation but rather intimidation. Furthermore, the record did not show that the charges were read over and explained to the appellant before he was asked to plead, which is a mandatory requirement for a valid plea. Although there was interpretation from English to Kiswahili, the absence of a clear record precluded the court from assuming compliance. Consequently, the conviction was quashed and the sentence set aside. Given the seriousness of the alleged offences, the court ordered a retrial before a different magistrate, with directions for the appellant to remain in remand custody pending the new plea...
Court Disposition
conviction quashed, sentence set aside, retrial ordered
Orders
- Appeal allowed.
- Conviction quashed and sentence set aside.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Criminal Appeal 61 of 2007
FEISAL ALI ……………….……………………………………….. APPELLANT
VERSUS
REPUBLIC …………………………………..…………………… RESPONDENT
(From the conviction and sentence of the Chief Magistrate’s Court Mombasa in Criminal Case No. 656 of 2007)
JUDGMENT
The Appellant was charged before the Chief Magistrate with nine counts of molestation contrary to Section 238(2) of the Penal Code. It was alleged he had sent unprintable obscenities through SMS to the complainant. Upon his plea of guilty he was convicted and sentenced to two years imprisonment on each count. The sentences were ordered to run concurrently. He has appealed against that conviction and sentence and listed four grounds of appeal.
Mr. Mabeya who appeared for the Appellant argued the grounds of appeal together and raised two points. The first one is that the charge was defective and the second one was that there is nothing on record to show that the charges were read over and explained to the Appellant before he was asked to plead.
Mr. Onserio for the state conceded that the particulars of the charge supported the offence of intimidation and not molestation. But as regards the plea he said the same was proper as the charges were read to the Appellant in Kiswahili language. He asked for a retrial.
I have perused the record and I agree with Mr. Mabeya that the particulars of the charges do not support the offence of molestation and that there is nothing on record to show that the charges were read over and explained to the Appellant before he was asked to plead. As there was interpretation from English to Kiswahili I am inclined to think that the charges were read over and explained to the Appellant before he pleaded but we cannot assume. In the circumstances I allow this appeal quash the conviction and set aside the sentence.
Given the seriousness of the offences I think the ends of justice will be served by ordering a retrial. I therefore direct that the State Counsel do draft proper charges and have the Appellant tried before another magistrate. The Appellant shall be in remand custody until 30th May 2007 when he should be taken before any other magistrate than the Chief Magistrate for plea.
DATED and delivered this 29th day of May 2007.
D.K. MARAGA
JUDGE
29. 5.2007
Before Maraga Judge
Mr. Mabeya for Appellant
Mr. Onserio for the state
Court clerk – Mitoto
Court – Judgment delivered in court.
D.K. MARAGA
JUDGE