[2009] KEHC 1003 (KLR)
The court found that the charge against the appellant was defective because it failed to specify that the weapons used were dangerous or offensive, as required by section 296(2) of the Penal Code. This omission constituted a fundamental defect in the charge, as it did not clearly specify the essential ingredients of...
Source-derived case information.
- Citation
- [2009] KEHC 1003 (KLR)
- Parties
- Appellant: Julius Kirimi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 52 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- MM Kasango, MJA Emukule
- Legal Topics
- Robbery With Violence, Defective Charge, Penal Code Section 296 2, Criminal Procedure, Essential Ingredients of Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Kirimi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge against the appellant was defective for failing to specify that the weapons used were dangerous or offensive as required under section 296(2) of the Penal Code.
- 2 Whether the omission of this essential ingredient invalidated the conviction and sentence.
Ratio Decidendi
The court found that the charge against the appellant was defective because it failed to specify that the weapons used were dangerous or offensive, as required by section 296(2) of the Penal Code. This omission constituted a fundamental defect in the charge, as it did not clearly specify the essential ingredients of the offence. The court relied on the precedent set in Juma v. Republic [2003] 2 E.A., which held that such a defect invalidates the charge and any resulting conviction. Consequently, the conviction and sentence imposed by the lower court could not stand and were quashed.
Court Disposition
appeal_allowed
Orders
- The conviction by the lower court is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU
Criminal Appeal 52 of 2008
JULIUS KIRIMI ……………………......................…………. APPELLANT
VERSUS
REPUBLIC ………………....................…..………………. RESPONDENT
(An appeal against the judgment of J. Nyaga P.M. in
Criminal Case No. 2286 of 2007 delivered on 17th April 2008)
JUDGMENT
The appellant was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the offence were as follows:-
“1. Stephen Gitonga 2. Fredrick Mwiti Muriuki 3. Julius Kirimi 4. Moses Kinyua Jadiel: on the 16day day of June, 2007 at Maua township in Igembe District within the Eastern Province, jointly with others not before the court and while armed with a knife and sticks robbed SHADRACK M’MITHIYA M’KIRIMA a mobile phone NOKIA 3310 valued Kshs. 4,000 and cash Kshs. 10,000 and at or immediately before or immediately after the time of such robbery wounded the said SHADRACK M’MITHIYA M’KIRIMA.”
As can be seen from those particulars of offence, the weapons used by the accused persons were not described to be dangerous or offensive as required under section 296 (2). The charge which the appellant faced at the lower court therefore was defective because the particulars of the offence did not state that the weapons used by the appellant were dangerous. That is a requirement under section 296 (2) of the Penal Code. That section is in the following terms:-
“296. (2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, of if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
As can be seen from that sub-section Section 296(2) it is essential that the particulars of the charge do indicate that a person was armed with dangerous or offensive weapon. Failure to state so renders that charge defective and the consequence of that finding is that the appellant’s appeal would succeed. That was holding by the Court of Appeal in the case of JumaVrs. Republic [2003] 2 E.A. The court held as follows:-
“The charge referred to the appellant having been armed with knives but the particulars did not clearly state whether the knife was a dangerous weapon. Under section 296(2) of the penal Code the charge must state that the accused was armed with a dangerous or offensive weapon or instrument. The charge as laid was defective as it did not clearly specify the essential ingredients of the offence under section 296(2) of the Penal Code.”
Having found that the charge which the appellant faced in the lower court was defective, the appellant’s appeal must succeed. Accordingly, the lower court’s conviction is hereby quashed and the sentence is hereby set aside and we order the appellant to be set free unless he is otherwise lawfully held.
Dated and delivered at Meru this 16th day of November 2009.
MARY KASANGO
JUDGE
M.J.A. EMUKULE
JUDGE