[1989] KECA 53 (KLR)
The conviction of the appellant could not stand because the charge sheet failed to specify that the panga and rungu were dangerous or offensive weapons, which is a mandatory ingredient of the offence under section 308(1) of the Penal Code. The omission of this essential element, together with the absence of evidence...
Source-derived case information.
- Citation
- [1989] KECA 53 (KLR)
- Parties
- Appellant: John Dalla Nyadenga; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 84 of 1988
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Preparation to Commit Felony, Defective Charge, Ingredients of Offence, Dangerous or Offensive Weapon
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Dalla Nyadenga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge against the appellant under section 308(1) of the Penal Code was defective for omitting to specify that the weapons were dangerous or offensive.
- 2 Whether a conviction can stand where an essential ingredient of the offence is omitted from the particulars of the charge.
Ratio Decidendi
The conviction of the appellant could not stand because the charge sheet failed to specify that the panga and rungu were dangerous or offensive weapons, which is a mandatory ingredient of the offence under section 308(1) of the Penal Code. The omission of this essential element, together with the absence of evidence establishing the dangerous or offensive nature of the weapons, rendered the charge fatally defective and incapable of supporting a conviction. The court held that all ingredients of the offence must be set out in the particulars of the charge and proved by evidence; failure to do so means no offence is disclosed and any resulting conviction must be quashed.
Court Disposition
appeal_allowed
Orders
- The appellant's appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
36 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(Coram: MasimeJA,Gicheru & Kwach AG JJ A)
CRIMINAL APPEAL NO 84 OF 1988
BETWEEN
JOHN DALLA NYADENGA..................... APPELLANT
AND
REPUBLIC.............................................RESPONDENT
JUDGMENT
(Appeal from a judgement of the High Court of Kenya at Kisumu, Omolo J, dated 25th September 1985
in
High Court Criminal Appeal No 183 of 1987)
******************************
June 22, 1989, the following Judgment of the Court was delivered.
An accused person commits the offence of preparation to commit a felony contrary to section 308 (1) of the Penal Code if he is found “armed with any dangerous or offensive weapon in circumstance that indicate that he was so armed with intent to commit any felony. “Thus, an accused person must be found:
1. Armed with any dangerous or offensive weapon; and
2. In circumstances that indicate that he was so armed with intent to commit a felony.
These ingredients must be specified in the particulars of the offence under section 308(1). An omission of any one of these ingredients will render the charge for such offence defective to the extent that it discloses no offence. If such charge is not sufficiently amended, on appeal, a conviction thereon will be quashed – see the case of Matu s/o Gichumu V. Rex,(1951) 18 EACA 311 at page 316.
The particulars of the offence under section 308(1) of the Penal Code for which the Appellant, John Dalla Nyadenga, was charged in the Court of first instance read as follows:
“John Dalla Nyadenga: On the night of 8th January, 1987 at Kaidakwa estate in Siaya Township in Siaya District of the Nyanza province was found armed with a panga and a runguwith intent to commit a felony.”
These particulars made no reference to the pangaand the rungumentioned therein being dangerous or offensive weapons. Indeed, the proceedings in the Court of first instance made no intimation that these weapons were dangerous or offensive.
The words dangerous or offensive weapon contemplates the weapon being used to cause peril: or intended for or used in attack. It is not for nothing therefore that these words are used in section 308(1) of the Penal Code. Failure to indicate in the particulars of the offence set out above that the pangaand the runguwere either dangerous or offensive weapons amounted to an omission of one of the two ingredients that constitute the offence under the section aforementioned. A pangaand a rungu, as the first appellate Judge rightly pointed out, are not per sedangerous weapons but can be used to inflict injuries on people. The omission of the ingredient mentioned above together with the absence of evidence being led in the court of the first instance that these weapons were either dangerous or offensive made the charge against the appellant totally defective. That charge disclosed no offence. A conviction arising therefrom cannot stand.
Accordingly, we allow the appellant’s appeal, I quash his conviction and set aside the sentence of 10 years imprisonment with hard labour together with 3 strokes of corporal punishment. His police supervision order is also set aside. He is to be set at liberty forthwith unless held in custody for any other lawful cause.
That is the order of the court.
Dated and Delivered at Kisumu this 22nd day of June, 1989.
J.R.O. MASIME
................................
JUDGE OF APPEAL
J.E. GICHERU
................................
AG. JUDGE OF APPEAL
R.O. KWACH
................................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR