[2012] KEHC 1633 (KLR)
The court held that the appellants' convictions under the Sexual Offences Act could not stand because the Act was not in force at the time the offences were committed. Applying the law retroactively would violate constitutional principles. The court also found that, due to the passage of approximately seven years...
Source-derived case information.
- Citation
- [2012] KEHC 1633 (KLR)
- Parties
- Appellant: John Amukusi; Appellant: David Mukabana; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 349 & 450 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Retroactive Application of Law, Sexual Offences, Conviction and Sentence, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Amukusi
Appellant
David Mukabana
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellants could be lawfully convicted under the Sexual Offences Act for offences committed before its enactment.
- 2 Whether the convictions and sentences based on the substituted charges under the Sexual Offences Act were valid.
- 3 Whether a retrial should be ordered given the lapse of time and gaps in the prosecution's case.
Ratio Decidendi
The court held that the appellants' convictions under the Sexual Offences Act could not stand because the Act was not in force at the time the offences were committed. Applying the law retroactively would violate constitutional principles. The court also found that, due to the passage of approximately seven years since the alleged offences and significant gaps in the prosecution's case, ordering a retrial would not serve the interests of justice and would be prejudicial to the appellants. Consequently, the convictions were quashed, sentences set aside, and the appellants ordered to be released unless otherwise lawfully held.
Court Disposition
appeal_allowed
Orders
- Convictions quashed.
- Sentences set aside.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Criminal Appeal 349 & 450 of 2009
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JOHN AMUKUSI & ANOTHER …......………………………. APPELLANT
DAVID MUKABANA ………………...…………………….. APPELLANT
VERSUS
REPUBLIC ………………………………..…………………RESPONDENT
JUDGMENT
These appeals are consolidated. The two appellants were originally charged with the offence of rape contrary to Section 140 of the Penal Code and in the alternative indecent assault to contrary to Section 144 (1) of the Penal Code. In count two they were charged with the offence of stealing from the person contrary to Section 279 (a) of the Penal Code. These offences were said to have been committed on 3rd February, 2005. Subsequently, in January, 2007 the charges were substituted whereupon the appellants were charged with the offence of gang rape contrary to Section 10 of the Sexual Offences Act No. 3 of 2006 and in the alternative the offence of indecent act with an adult contrary to Section 11 of the same Act. In count two they were charged with stealing from the person contrary to Section 279 (a) of the Penal Code.
The dates of the alleged offences remained the same, that is, 3rd February, 2005. After a full trial the appellants were convicted of the offence of gang rape contrary to Section 10 of the Sexual Offences Act and sentenced to 20 years imprisonment each. They were also convicted of the offence of stealing from the person contrary to Section 279 (a) of the Penal Code and sentenced to two years imprisonment each. The prison terms were ordered to run consecutively. These appeals arise from the said conviction and sentence.
At the hearing of these appeals the learned counsel for the Republic conceded the appeals. The grounds upon which the appeals were conceded are that when the offences were committed, the Sexual Offences Act No. 3 of 2006 which came into operation on 14th July, 2006 had not been enacted. Accordingly, the appellants could be charged under that Act in the substituted charge sheet. The learned counsel for the Republic also pointed out that there were some glaring gaps in the proceedings, and therefore could not ask for a retrial as this would be prejudicial to the appellants.
On my part, I have also looked at the record and, with respect agree with the learned counsel for the Republic that the Sexual Offences Act could not sustain the charges in view of the fact that it was not in operation when the offences were committed. That alone is sufficient to vitiate the trial.
The offences with which the appellants were charged were no doubt serious, but from the time of the alleged offences to date is a period of about seven years, and it will not be in the interests of justice to order a retrial. I also consider that from 30th June, 2009 they have been serving the sentences handed down by the learned trial magistrate.
Accordingly, no retrial shall be ordered. These appeals are hereby allowed, convictions quashed and sentences set aside. The appellants shall be set free forthwith unless otherwise lawfully held.
Orders accordingly.
Dated, signed and delivered at Nairobi this 27th day of September, 2012.
A.MBOGHOLI MSAGHA
JUDGE