[2010] KEHC 1732 (KLR)
The court found that the omission of the word 'unlawful' in the particulars of the charge sheet for defilement under section 145(1) of the Penal Code rendered the charge fatally defective. This defect was not curable under section 382 of the Criminal Procedure Code. As a result, the conviction and sentence based on...
Source-derived case information.
- Citation
- [2010] KEHC 1732 (KLR)
- Parties
- Appellant: Juma Hassan Tumbo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 71 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
- Legal Topics
- Defilement, Defective Charge Sheet, Criminal Procedure, Penal Code Section 145, Conviction Quashed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Juma Hassan Tumbo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the omission of the word 'unlawful' in the charge sheet for defilement under section 145(1) of the Penal Code renders the charge fatally defective.
- 2 Whether the defect in the charge sheet is curable under section 382 of the Criminal Procedure Code.
Ratio Decidendi
The court found that the omission of the word 'unlawful' in the particulars of the charge sheet for defilement under section 145(1) of the Penal Code rendered the charge fatally defective. This defect was not curable under section 382 of the Criminal Procedure Code. As a result, the conviction and sentence based on such a defective charge sheet were null and void. The appeal was allowed, the conviction quashed, and the sentence set aside. The appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
Orders
- The appellant's conviction is quashed.
- The twenty (20) year sentence is set aside.
Full Case Text
Judgment text and source record
18 paragraphs
(From Original Conviction and Sentence in Criminal Case No. 664 of 2006 of the Senior Resident Magistrate’s Court at Kwale:D.M. Ochenja- S.R.M.)
JUMA HASSAN TUMBO....................... APPELLANT
VERSUS
REPUBLIC ........................................... RESPONDENT
JUDGEMENT
The Appellant herein JUMA HASSAN TUMBO, has filed his appeal against his conviction and sentence by the learned Senior Resident Magistrate sitting at Kwale Law Courts.The Appellant had been charged with the offence of DEFILEMENT OF A GIRL CONTRARY TO SECTION 145(1) OF THE PENAL CODE.He pleaded ‘not guilty’ to the offence and his trial commenced on 26th May 2006. The prosecution called a total of four (4) witnesses in support of their case.At the end of the trial the learned trial magistrate convicted the Appellant and sentenced him to serve twenty (20) years in prison.
I have perused the written submissions filed by the Appellant.I have also considered the oral submissions made by MR. MUTETI, learned State Counsel opposing this appeal.I have looked at the charge sheet and I note that the particulars failed to include the term “unlawful” before the words “carnal knowledge”.Mr. Muteti submitted that this omission was not fatal to the prosecution case.However I do disagree.In the case of NGENO –VS- REPUBLIC [2002] 1 KLR 457 the Court of Appeal held
“A charge under S. 145(1) of the Penal Code must in its particulars include the word ‘unlawful’.Failure to state in the particulars that the carnal knowledge was unlawful renders the charge fatally defective”
The Appellant was charged under S. 145(1) of the Penal Code.As such it was imperative that the word ‘unlawful’ be included in the charge sheet.The omission to include this word renders this charge fatally defective – a defect which is not curable under S. 382 of the Criminal Procedure Code.As such the conviction of the Appellant on the basis of this defective charge sheet is null and void.For this reason alone this appeal succeeds.The Appellant’s conviction is hereby quashed and his twenty (20) year sentence is set aside.The Appellant to be set at liberty forthwith unless he is otherwise lawfully held.
Dated and Delivered inMombasathis 22nd day of July 2010.
M. ODERO
JUDGE
Read in open court in the presence of:-
Mr. Onserio for State
Appellant in person
M. ODERO
JUDGE
22/07/2010