[2017] KEHC 503 (KLR)
The court found that the charge sheet under which the appellant was charged was incurably defective because it described the intended felony as 'cheating,' which is not classified as a felony under Kenyan law. This fundamental defect meant that the appellant was not properly informed of the offence he was required...
Source-derived case information.
- Citation
- [2017] KEHC 503 (KLR)
- Parties
- Appellant: John Irungu Chege; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 53 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; appellant set free
- Judges
- CB Nagillah, EM Ngugi
- Legal Topics
- Preparation to Commit Felony, Defective Charge Sheet, Conviction and Sentence, Penal Code Section 308, Appeal Success, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Irungu Chege
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge sheet was incurably defective due to misdescription of the offence.
- 2 Whether the conviction and sentence could stand in light of the defective charge sheet.
- 3 Whether the prosecution evidence was sufficient to sustain a conviction.
Ratio Decidendi
The court found that the charge sheet under which the appellant was charged was incurably defective because it described the intended felony as 'cheating,' which is not classified as a felony under Kenyan law. This fundamental defect meant that the appellant was not properly informed of the offence he was required to answer, violating his right to a fair trial. The prosecution conceded the appeal on this basis. Consequently, the court held that the conviction and sentence could not stand and must be quashed. The appellant was ordered to be set free unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction quashed; appellant set free
Orders
- The appeal succeeds.
- The conviction is quashed.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL APPEAL NO. 53 OF 2016
[From Original Conviction and Sentence in Criminal Case No. 3143 of 2012 of The Chief Magistrate Court at Thika]
JOHN IRUNGU CHEGE………………… APPELLANT
-V E R S U S-
REPUBLIC……………………....…… RESPONDENT
J U D G E M E N T
1. This is the judgment of the Criminal Appeal No. 53 of 2016, JOHN IRUNGU CHEGE – the Appellant herein. He was charged of preparing to commit a felony contrary to Section 308 (2) of the Penal Code.
The particulars thereof were that on the 12th July, 2012 at Tabby Housein Thika town within Kiambu County jointly with another not before court was found in presence of One Nokia mobile phone shell X2 stacked with mud in circumstances which indicated that he was so armed with intention to commit a felony namely cheating.
2. He pleadednot guilty.
The Trial ensued.
The accused accordingly convicted and imprisoned to 7 years imprisonment.
3. Being aggrieved and dissatisfied he has appealed against both the conviction and the sentence.
4. He set out several Grounds of Appeal:
1. TheTrial Magistrate erred in both law and fact by convicting me on the charges of preparation to commit a felony without noting that the prosecution’s evidence was incurably erroneous, ridden with fundamental flaws, shallow and shoddy.
2. That the Learned Trial Magistrate misrepresented distorted and over simplified the context of the whole proceeding in this case.
3. That the Trial Magistrate erred in fact and law by failing to put into consideration my defense which challenged the prosecution case and outweighed the same.
4. That the prosecution evidence was unreliable the conviction was unsafe and unsatisfactory, the sentence was either wrong in the principle or manifestly excessive.
5. He further filed a further supplementary Grounds of appeal.
6. However, upon perusing on the charge sheet under which the Appellant was charged, the particulars as set out, shows that it was incurably defective. In that, the offence of preparing to commit a felony contrary to Section 308 (2) of the Penal Code but in the particulars it proceeds to say:
“……….was found in possessing one Nokia mobile phone shell stacked with mud so armed, with intention to commit a felony namely cheating.”
It is obvious that cheating is not a felony. This therefore, makes the charged sheet incurably defective.
The prosecution for the respondent, conceded this appeal due to the defective in the charge sheet as earlier stated.
Accordingly, therefore this appeal succeeds and the conviction herein be and is hereby quashed and the appellant set free, unless otherwise lawfully held.
7. Orders accordingly.
JUDGMENT WRITTEN AND SIGNED BY:
C. B. NAGILLAH
JUDGE
JUDGMENT DELIVERED, DATED AND COUNTERSIGNED AT KIAMBU IN OPEN COURT BY:
THIS 18TH DAY OF MAY 2017
JOEL NGUGI
JUDGE
In the Presence of:
……………………………for Appellant
……………………………for Respondent
……………………………for Court Assistant