[2014] KEHC 2815 (KLR)
The conviction and sentence of the applicant were based on Section 38 of the Sexual Offences Act, which had been repealed by the Miscellaneous Law Amendment Act, 2012, prior to the applicant's arraignment and conviction. As a result, the charge was non-existent in law, and the proceedings were irregular and...
Source-derived case information.
- Citation
- [2014] KEHC 2815 (KLR)
- Parties
- Applicant: K M; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 6 of 2014
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- conviction quashed and sentence set aside
- Judges
- LN Mutende
- Legal Topics
- Sexual Offences, False Allegations, Criminal Procedure, Conviction Quashing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
K M
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the conviction and sentence based on a repealed statutory provision are lawful.
- 2 Whether the proceedings in the lower court were regular, correct, and proper in law.
Ratio Decidendi
The conviction and sentence of the applicant were based on Section 38 of the Sexual Offences Act, which had been repealed by the Miscellaneous Law Amendment Act, 2012, prior to the applicant's arraignment and conviction. As a result, the charge was non-existent in law, and the proceedings were irregular and unlawful. The court found that a magistrate accepting a charge that does not exist in law is erroneous, and any conviction arising from such a charge cannot stand. Consequently, the High Court exercised its revisionary jurisdiction to quash the conviction and set aside the sentence, ordering the applicant's immediate release unless otherwise lawfully held.
Court Disposition
conviction quashed and sentence set aside
Orders
- The conviction of the applicant is quashed.
- The sentence meted out is set aside.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL REVISION NO. 6 OF 2014
K M …...................................................................................APPLICANT
VERSUS
REPUBLIC ………….…………………………………....RESPONDENT
RULING ON REVISION
This file has been placed before me for purposes of revision. K M was charged with the offence of making false allegations contrary to Section 38as read with Section (1) (a) (c) (3) of the Sexual Offences Act No. 3 of 2006. Particulars of the charge being that on the 29thday of November, 2013 at Emali Police StationinNzauni District within Makueni County made false allegations against B M M to the effect that B M M had committed rape against her a fact she knew to be false.
She was arraigned in court on the 1st December, 2013. The charge was read to her and she admitted it. She was found guilty, convicted and sentenced to ten (10) years imprisonment.
This court has been moved pursuant to the provisions of Section 362 of the Criminal Procedure Code. My duty is therefore to satisfy myself of the correctness, legality or propriety of the regularity of the proceedings of the Lower Court which resulted into the conviction made and sentence meted out.
Section 38 of the Sexual offences Act, 2006 was repealed by statute (Miscellaneous Law) Amendment Act, 2012).As a result it is non-existent. A Magistrate accepting a charge that does not exist in law is erroneous. A conviction emanating therefrom cannot stand.
Following the irregularity aforestated stated, I do quash the conviction and set aside the sentence meted out. The applicant shall be released forthwith unless otherwise lawfully held.
It is so ordered.
DATED, SIGNEDand DELIVERED at MACHAKOS this9THday of SEPTEMBER 2014.
L.N. MUTENDE
JUDGE