[2003] KEHC 156 (KLR)
The conviction was quashed because the charge as framed was defective: the statement of the offence alleged failing to stop after an accident, but the particulars only alleged failing to report the accident. This substantive defect was not noticed or corrected by the prosecution or the trial court, and no evidence...
Source-derived case information.
- Citation
- [2003] KEHC 156 (KLR)
- Parties
- Appellant: John Maric Kulet; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 404 of 2000
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Legal Topics
- Traffic Offences, Defective Charge, Criminal Procedure, Conviction and Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Maric Kulet
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge as framed was defective and fatal to the prosecution case.
- 2 Whether the evidence supported the conviction for failing to stop after an accident.
- 3 Whether the sentence imposed was legal under the relevant statutory provisions.
Ratio Decidendi
The conviction was quashed because the charge as framed was defective: the statement of the offence alleged failing to stop after an accident, but the particulars only alleged failing to report the accident. This substantive defect was not noticed or corrected by the prosecution or the trial court, and no evidence could properly support a conviction on such a charge. The defect was fatal to the prosecution's case, rendering the conviction erroneous regardless of the evidence that an accident occurred. The sentence was also set aside, and any fine paid was ordered to be refunded to the appellant.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The conviction is quashed and the sentence set aside.
- Any fine paid by the appellant is to be refunded to him.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO.404 OF 2000
From original conviction and sentence in Criminal Case No.2650/99
of the Chief Magistrate’s Court at NAKURU – H. WASILWA (S.R.M.)
JOHN MARIC KULET............................................APPELLANT
VERSUS
REPUBLIC........................................................RESPONDENT
J U D G M E N T
The Appellant was charged with FAILING TO STOP AFTER AN ACCIDENT contrary to Section 73(3) of the Traffic Act. The particulars of the charge were:-
“JOHN MARK KAMAKEI KULET on the 14th day of March, 1999 at about 6. 10 p.m. along S.K. BEDI road near P.C.E.A. Church within Nakuru Township in Nakuru District of the Rift Valley Province being the driver of a motor vehicle Reg. No.KLX 295 Land Rover and having been involved in an Accident with a pedestr ian who sustained Injuries did fail to report such accident to A police station or to a police officer Within 24 hours after such accident.”
The appellant pleaded not guilty to the charge and the case was fully heard. The trial court found him guilty of the offence and sentenced him to a fine of shs.4000/- and in default 3 months imprisonment. He has now appealed against both conviction and sentence. The appeal is opposed.
The Appellant’s advocate argued this appeal. He raised 4 grounds. The first ground was that the trial magistrate erred in finding there was an accident on the material day. Ground two was that the trial court erred for finding that the Complainant was injured without any evidence of injury. The third ground was that the court erred in failing to find that the prosecution’s evidence was contradictory. The last ground argued was that the trial court imposed an illegal sentence not provided under Section 75 of the Traffic Act.
The appeal was opposed on the conviction but the Learned State Counsel conceded the appeal against the sentence. The State Counsel submitted that the evidence adduced by the prosecution was sufficient to sustain the charge.
I have considered this appeal. The very first point I have noted is that the statement of the offence is not supported in the particulars of the charge. The charge against the Appellant was that he failed to stop after an accident. The particulars of the charge do not allege that he failed to stop. They allege that he failed to report an accident. None of the parties to this case seem to have noted this serious anomaly and neither did the court. It was the duty of the prosecution to ensure that the charge and the particulars of the same tally. It was also the duty of the court to ensure that there was a proper charge before it. If the charge was not proper the court had a duty and powers under Section 214(1) of the Criminal Procedure Code to order for an amendment of the charge. Section 214(1) of the Criminal Procedure Code provides:-
“Where at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective either in substance or in form, the court may make such order for the alteration of the charge, either by wa y of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case.”
The charge before the court was defective and the defect goes to the substance of the charge making it fatal to the prosecution case. No wonder confusion was caused to both the parties to this case as to the real charge facing the Appellant. Given the defect no evidence could be adduced to support it and the conviction was erroneous.
I must however state that after perusing the evidence on record, I have no doubt whatsoever that an accident occurred on the material day between the vehicle the appellant was driving and the Complainant. In this case, the conviction cannot however stand. I accordingly allow the appeal by quashing the conviction and setting aside the sentence.
I further order that if any fine was paid by the Appellant it should be refunded to him.
Orders accordingly.
Dated and delivered at Nakuru this 16th day of May, 2003.
JESSIE LESIIT
JUDGE