[2020] KEHC 5711 (KLR)
The court found that the particulars of the charge did not disclose any offence under the Public Order (State Curfew) Order, 2020, as the alleged conduct occurred outside the prescribed curfew hours. Furthermore, if the intention was to charge the applicant with unlawfully leaving the Nairobi Metropolitan Area, the...
Source-derived case information.
- Citation
- [2020] KEHC 5711 (KLR)
- Parties
- Applicant: Gabriel Kamau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 106 of 2020
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- conviction quashed and sentence set aside
- Legal Topics
- Defective Charge Sheet, Curfew Orders, Covid 19 Regulations, Unlawful Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Kamau
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the charge as laid disclosed an offence under the relevant law.
- 2 Whether the conviction based on a plea of guilty was valid where the charge was defective.
Ratio Decidendi
The court found that the particulars of the charge did not disclose any offence under the Public Order (State Curfew) Order, 2020, as the alleged conduct occurred outside the prescribed curfew hours. Furthermore, if the intention was to charge the applicant with unlawfully leaving the Nairobi Metropolitan Area, the proper legal provisions were not cited. The charge was thus incurably defective, and the conviction, even on a plea of guilty, could not stand. The court quashed the conviction and set aside the sentence, ordering the applicant's immediate release unless otherwise lawfully held.
Court Disposition
conviction quashed and sentence set aside
Orders
- The conviction is quashed.
- The sentence imposed is set aside.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL REVISION NO.106 OF 2020
GABRIEL KAMAU…............................................................APPLICANT
VERSUS
REPUBLIC .........................................................................RESPONDENT
(Revision of the Original Sentence dated 08. 05. 2020 in Nanyuki Criminal Case No.403 of 2020 – L. Mutai, CM)
27. 05. 2020
Before Justice H P G Waweru
In Chambers
ORDER ON REVISION
1. Upon request by the advocates for the Convict herein, Messrs Kiget & Company, Advocates, by their letter dated 18. 05. 2020 addressed to the court, I have called for and examined the record of the trial court.
2. The Convict, GABRIEL KAMAU, was convicted upon his own plea of Breach of Curfew Ordercontrary toOrder 3of thePublic Order (State Curfew) Order, 2020as read with Section 8(6)of the Public Order Act, Cap 56.
3. On 08. 05. 2020 the Convict was sentenced to six (6) months imprisonment.
4. The particulars of the offence were set out in the charge sheet as follows -
“…..on the 8th day of May, 2020 at about 10:00 am at Makutano area along Nanyuki/Meru Road, Meru County ….having not been listed in the schedule to the Public Order 2020 ….was found unlawfully travelling along the said road from Nairobi towards Meru direction in a motor vehicle registration number KBN 813V, Isuzu NPE without proper authorization in contravention of the said act.”
5. To begin with, the offence set out in the above particulars is not to be found in the Public Order (State Curfew) Order, 2020 (Legal Notice No.36 of 2020). That Order declared a nation-wide curfew between the hours of 7:00 pm and 5:00 am. The Convict herein was found on the road at 10:00 am – that was outside the curfew hours.
6. If it was intended to charge the Convict with unlawfully leaving the Nairobi Metropolitan Area, that would be an offence under Order 3 of the PUBLIC HEALTH (COVID-19 RESTRICTION OF MOVEMENT OF PERSONS AND RELATED MEASURES) (NAIROBI METROPOLITAN AREA) ORDER, 2020 (Legal Notice No.51 of 2020) as read with Rules 4(1) and 11 of the PUBLIC HEALTH (COVID-19 RESTRICTION OF MOVEMENT OF PERSONS AND RELATED MEASURES) RULES, 2020 (Legal Notice No.50 of 2020) and also Section 36 of the Public Health Act, Cap 242.
7. The charge as laid was thus incurably defective for not disclosing the offence charged.
8. The Convict was wrongly convicted, notwithstanding that he pleaded guilty.
9. In the circumstances the conviction is hereby quashed and the sentence imposed set aside. The Convict shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 27TH DAY OF MAY, 2020
H.P.G. WAWERU
JUDGE.
DEPUTY REGISTRAR
NANYUKI HIGH COURT