[2009] KEHC 1059 (KLR)
The court found that the charge against the appellant was fatally defective because it failed to allege 'unlawful carnal knowledge,' a fundamental ingredient required under section 145(1) of the Penal Code. Additionally, the conviction was based solely on the testimony of the complainant's mother, who was not an eye...
Source-derived case information.
- Citation
- [2009] KEHC 1059 (KLR)
- Parties
- Appellant: Hamadi Masudi Mtawa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 248 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be set at liberty unless otherwise lawfully held.
- Legal Topics
- Defilement, Defective Charge, Unlawful Carnal Knowledge, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hamadi Masudi Mtawa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction was based on sufficient and admissible evidence.
- 2 Whether the charge as framed disclosed an offence known to law under section 145(1) of the Penal Code.
- 3 Whether the failure to state 'unlawful carnal knowledge' in the particulars rendered the charge fatally defective.
Ratio Decidendi
The court found that the charge against the appellant was fatally defective because it failed to allege 'unlawful carnal knowledge,' a fundamental ingredient required under section 145(1) of the Penal Code. Additionally, the conviction was based solely on the testimony of the complainant's mother, who was not an eye witness, and on medical evidence produced by a witness whose qualifications were not disclosed. The complainant herself did not testify to the alleged defilement, and there was no direct or corroborative evidence linking the appellant to the offence. As a result, the charge did not disclose an offence known to law, and the conviction could not stand.
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
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Criminal Appeal 248 of 2008
HAMADI MASUDI MTAWA..……………......……………….APPELLANT
VERSUS
REPUBLIC……………………………………....………….RESPONDENT
JUDGMENT
The appellant, Hamadi Masudi Mtawa, was tried and convicted by D. O. Ogembo, then a Senior Resident Magistrate at Kwale on a charge of defilement of a girl under the age of 16 years contrary to section 145 (1) of the Penal Code. The particulars contained in the charge were that on the 29th day of March 2004, at about 7. 00 p.m. in Kwale District within Coast Province, the appellant had carnal knowledge of M.M.S (hereinafter “the complainant”) a girl under the age of 16 years. The appellant faced an alternative charge of indecent assault on a female contrary to section 144 (1) of the Penal Code. Upon his conviction on the main charge, the appellant was sentenced to fifteen (15) years imprisonment.
Being dissatisfied with his conviction and sentence, the appellant has appealed to this court on various grounds which, in the main, allege breach of his fundamental rights under the constitution, conviction on uncorroborated, inconsistent hearsay and contradictory evidence.
When the appeal came up before me for hearing on 20th July 2009, Mr. Onserio, Learned State Counsel, did not oppose the appeal on the main ground that the complainant did not fully testify before the Lower Court and that there was no eye witness to the defilement. Mr. Nyamboye, Learned Counsel for the appellant, concurred with the position taken by the Learned State Counsel and emphasized that there was no evidence to connect the appellant to the offence.
I have considered the evidence which was adduced before the Learned trial Magistrate. The Learned trial Magistrate convicted the appellant on the testimony of the complainant’s mother, M.B, who testified as PW 1 and that of Chrispin Mnyapara, PW 5, who produced the P3 form. The complainant’s mother was not an eye witness to the offence. She connected the appellant to the offence from the description given by the complainant. In her own words:-
“I started asking her what happened. She told me she was playing and another man came who buys oranges and he called me and told her to go to the camp where she was defiled under the trees……”
When the complainant was called, she did not testify that the appellant defiled her. It would appear from the record that the complainant was stood down as a witness on the prosecutor’s application. The appellant was therefore not positively identified. The medical evidence was given by Chrispin Mnyapara, PW 5, aforesaid. The record does not show the basis upon which he produced the P3 form on the complainant. His qualifications were not disclosed. So even if the appellant had been positively identified there would still be no satisfactory medical evidence to support the charge.
Before concluding this matter, I have noted one point which was not addressed by either the appellant or the Learned State Counsel. It relates to the charge. A plain reading of the same shows that the charge is defective. Section 145 (1) of the Penal Code (now repealed) was in the following terms:-
“145 (1) Any person who unlawfully and carnally knows any girl under the age of fourteen years is guilty of a felony and is liable to imprisonment with hard labour for fourteen (14) years together with corporal punishment.”
A subsequent amendment raised the age to 16 and removed the corporal punishment. As can be seen, for a person to be liable under the section, he must have had, not just carnal knowledge, but that the carnal knowledge must have been unlawful. So the “unlawful carnal knowledge” is a fundamental ingredient of the offence of defilement under the section. The failure to state in the particulars that the carnal knowledge was unlawful rendered the charge fatally defective. The charge as laid did not therefore disclose an offence known to Law. I need not consider the rest of the grounds of appeal raised by the appellant. I allow this appeal, quash the conviction and set aside the sentence imposed upon the appellant. The appellant should be set at liberty unless otherwise lawfully held.
DATED AND DELIVERED AT MOMBASA THIS 13TH DAY OF OCTOBER 2009.
F. AZANGALALA
JUDGE
Read in the presence of:-
The Appellant and Mr. Onserio for the Republic.
F. AZANGALALA
JUDGE
13TH OCTOBER 2009