[2012] KEHC 4964 (KLR)
The court found that the State's concession on the ground of a defective charge sheet was misdirected because, as of the date of the offence (2nd February 2006), Section 145(1) of the Penal Code had already been amended to set the relevant age at under sixteen years. Therefore, the charge sheet was not defective....
Source-derived case information.
- Citation
- [2012] KEHC 4964 (KLR)
- Parties
- Appellant: Juma Ali Mwanyama; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 97 of 2008
- Procedural Posture
- Criminal Appeal / Interlocutory Ruling on Appeal Abandonment
- Outcome
- Appeal abandoned by appellant; ruling on abandonment deferred to specified date.
- Judges
- GL Nzioka
- Legal Topics
- Defilement, Criminal Appeals, Charge Sheet Defects, Sentencing, Sexual Offences, Abandonment of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juma Ali Mwanyama
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Interlocutory Ruling on Appeal Abandonment
Legal Issues
- 1 Whether the charge sheet was defective due to reference to the victim's age as under 16 years instead of under 14 years under Section 145 of the Penal Code.
- 2 Whether the sentence imposed was lawful under the applicable law at the time of the offence.
- 3 Whether the appellant's abandonment of the appeal should be accepted.
Ratio Decidendi
The court found that the State's concession on the ground of a defective charge sheet was misdirected because, as of the date of the offence (2nd February 2006), Section 145(1) of the Penal Code had already been amended to set the relevant age at under sixteen years. Therefore, the charge sheet was not defective. The court also noted that the sentence imposed (ten years imprisonment) was less than the maximum (life imprisonment) prescribed by law at the time. However, since the appellant, after being informed of the legal position and possible consequences, unequivocally expressed his wish to abandon the appeal, the court deferred further judgment and set a date for a formal ruling on the...
Court Disposition
Appeal abandoned by appellant; ruling on abandonment deferred to specified date.
Orders
- The matter is set for ruling on the abandonment of the appeal on 12th March, 2012.
- Issues regarding the charge sheet and sentence are brought to the appellant's attention for his understanding before final judgment.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 97 OF 2008
JUMA ALI MWANYAMA ………………….............................…………….APPELLANT
VERSUS
REPUBLIC ……………………………….…................…………………RESPODENT
(From the Original Conviction and Sentence in Criminal Case No. 373 of 2006 of the Principal Magistrate’s Court - D.O. Ogembo – P.M)
RULING
JUMA ALI MWANJEMAherein after referred to as the Appellant, was charged with the offence of;
Defilement of a girl Contrary to Section 145 (1) of the Penal Code.
The particulars of the charge are;
On the 2nd day of February 2006, in Kwale District within Coast Province, had carnal knowledge of M.M. a girl under the age of 16 years”.
He was tried at the Senior Resident Magistrates Court, at Kwale, by Hon. Ogembo D.O, Principal Magistrate. He was convicted and sentenced to serve TENyears imprisonment. He has appealed against both the Conviction and the Sentence.
At the hearing of the Trial, the Appellant who was not represented, relied entirely on the written submission he filed to prosecute his appeal. Mr. Tanui, the Learned State Counsel appeared for the State. He told the court that he was conceding to the appeal on the ground that the charge sheet is defective as it makes reference to the age of the victim as under “16 years” and yet under Section 145 of the Penal Code the relevant age is under “14 years”.
As a result of the submissions by the state, I looked at the relevant provisions of Section 145 of the Penal Code (now repealed). I discovered the following.By a Gazette Notice No.5 of 2003 which received assent on 18th July, 2003 and commencement on 25th July, 2003. The provisions of Section 145 of the Penal Code were amended to read Section 145 (1)
“Any person who unlawfully and carnally knows any girl under the age of sixteen years is guilty of a felony and liable with hard labour for life”.
Prior to the Gazette Notice No. 5 of 2003, the relevant age was under fourteen years. The charge sheet herein indicates the offence was committed on 2nd February, 2006 therefore the relevant age is “under sixteen years”.
It’s note worthy that subsequently on the 21st July 2006, the Sexual Offences Act No. 3 of 2006 came into force replacing the provision of Section 145 of the penal code with section 8, thereof. I therefore find that, the submissions by the Learned State Counsel are misdirected and improper. I also realize also that, the sentence which was applicable was “life imprisonment”. However, in this matter the learned Magistrate sentenced the Appellant to TEN (10) years imprisonment.
This matter has not come before me on “Revision”. I therefore find that it would be in the interest of Justice to bring these issues to the attention of the Appellant and seek to his understanding of the same, before I can proceed to write my full Judgment in this matter.
Orders accordingly.
G.L. NZIOKA
JUDGE
5/3/2012
Dated delivered and signed in an open court at Mombasa
G.L. NZIOKA
JUDGE
In the presence of:-
Appellant in person
Tanui for the state
Matano the court clerk
………………………………
G.L. NZIOKA
JUDGE
5/3/2012
Appellant states in Kiswahili:-
I wish to inform the court that I am now not sure what will happen to me if the court proceeds with my appeal. I wish to be left to serve the sentence that I have been given. I don’t wish to proceed with the appeal now.
G.L. NZIOKA
JUDGE
Mr. Tanui:I understand him to be saying, he wishes to abandon the appeal.
Appellant:yes, I don’t wish to go on further.
Court:Ruling on the matter on 12th March, 2012.
G.L. NZIOKA
JUDGE
5/3/2012