[2000] KEHC 248 (KLR)
The court found that the prosecution failed to prove the requisite mens rea for abduction. The child's evidence did not support the assertion that she was crying or that she was forcibly taken. The appellant's explanation that he asked the child to carry a bag for payment was consistent with the child's testimony....
Source-derived case information.
- Citation
- [2000] KEHC 248 (KLR)
- Parties
- Appellant: John Changala Emary; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 472 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Judges
- VV Patel
- Legal Topics
- Abduction, Mens Rea, Child Protection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Changala Emary
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant had the requisite mens rea to commit the offence of abduction.
- 2 Whether the evidence adduced by the prosecution established the charge beyond reasonable doubt.
Ratio Decidendi
The court found that the prosecution failed to prove the requisite mens rea for abduction. The child's evidence did not support the assertion that she was crying or that she was forcibly taken. The appellant's explanation that he asked the child to carry a bag for payment was consistent with the child's testimony. There was no evidence of coercion, force, or intent to abduct. The court held that, in the absence of clear evidence of intent, the conviction could not stand. The appeal was allowed, the conviction quashed, and the sentence set aside.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO.472 OF 2000
(From Original Conviction and Sentence in Criminal Case No.6103 of
1998 of the Senior Principal Magistrate’s Court at Kibera).
JOHN CHANGALA EMARY...................................... APPELLANT
versus
REPUBLIC.................................................................RESPONDENT
PROCEEDINGS
15-6-2000: Coram:Hon. Patel, J Tarus - court clerk Appellant present on Production Order Miss Makengu, State Counsel Court:
Hearing now on 20-6-2000.
Production Order extended till then.
V.V. PATEL
JUDGE
20-6-2000: Appellant present on Production Order Miss Marengu, State Counsel for Respondent Appellant:
I did not intend to abduct her. I wanted her to carry a bag for me. Makengu:
I support the conviction overwhelming evidence. The appellant removed the child from the uncle’s, P.W.3) custody without his consent.
P.W.2 said that the child, (P.W.1) was crying. P.W.2’s evidence corroborated that of P.W.1.
V.V.
PATEL
JUDGE
20-6-2000 .
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 472 OF 2000
(From Original Conviction and Sentence in Criminal Case No.6103 of 1998 of the Senior Principal Magistrate’s Court at Kibera).
JOHN CHANGALA EMANY............................................APPELLANT
versus
REPUBLIC.....................................................................RESPONDENT
J U D G M E N T
This appeal is for allowing.
The whole question centres round the issue of mens rea.
The learned Lady State Counsel Miss Makengu argued that the evidence of the child (P.W.1) was corroborated by that of P.W.2. With respect, I do not agree.
The appellant explained the purpose for taking the child who he met on a road. The child confirmed it to be so.
P.W.2 was on a look out for tresspassers and found the appellant and the child when they trespassed.
According to P.W.2 the child was crying at the time and the appellant was asking her to walk on.
The child never said in her evidence that she was crying and all that indeed that prosecution in the court below did not ask her any question about it. I note that in cross examination by the appellant, the child (P.W.1) said that the appellant did not beat her. That he simply asked her to go with him to carry a bag for which he was to pay her Sh.10/-, can one infer that the appellant intended to abduct the child to establish the charge? On the evidence it is not possible to say that the intent was there in view of the child’s own evidence.
The appeal is allowed. The conviction is quashed, the sentence is set aside. The appellant be released forthwith.
V.V. PATEL
JUDGE
20-6-2000