[2007] KEHC 3685 (KLR)

[2007] KEHC 3685 (KLR)

The court found that section 396(2) of the Penal Code expressly exempts a wife from being convicted as an accessory after the fact for assisting her husband to escape punishment. There was no evidence to suggest that the applicant was not living with Simon Matheri Ikere as his wife. Therefore, the charge against her was contrary to statute, and the proceedings, conviction, and sentence were unlawful. The High Court, exercising its revision jurisdiction, quashed the proceedings, set aside the conviction and sentence, and declared the trial a nullity.

Citation
[2007] KEHC 3685 (KLR)
Parties
Applicant: Felista Wanjiru Kongi; Respondent: Republic
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
11 June 2007
Case Number
Criminal Revision 459 of 2007
Procedural Posture
Criminal Revision / Ruling on Revision
Outcome
proceedings quashed, conviction and sentence set aside
Legal Topics
Accessory After the Fact, Spousal Exemption, Criminal Liability, Revision Jurisdiction
Source Language
English
Criminal Law Accessory After the Fact Spousal Exemption Criminal Liability Revision Jurisdiction

Case Brief

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Parties

Felista Wanjiru Kongi

Applicant

Republic

Respondent

Procedural Posture

Criminal Revision / Ruling on Revision

Legal Issues

  1. 1 Whether the applicant, as the wife of the principal offender, could lawfully be convicted as an accessory after the fact under section 396 of the Penal Code.
  2. 2 Whether the proceedings and conviction in the subordinate court were legal and proper in light of the statutory spousal exemption.

Ratio Decidendi

The court found that section 396(2) of the Penal Code expressly exempts a wife from being convicted as an accessory after the fact for assisting her husband to escape punishment. There was no evidence to suggest that the applicant was not living with Simon Matheri Ikere as his wife. Therefore, the charge against her was contrary to statute, and the proceedings, conviction, and sentence were unlawful. The High Court, exercising its revision jurisdiction, quashed the proceedings, set aside the conviction and sentence, and declared the trial a nullity.

Court Disposition

proceedings quashed, conviction and sentence set aside

Orders

  • The proceedings conducted before the Senior Principal Magistrate at the Kibera Chief Magistrate’s Court, Criminal Case No. 1461 of 2007 are quashed and declared null and void.
  • The conviction entered by the trial court on 27th February, 2007 is set aside.