[2017] KEHC 6976 (KLR)
The appellant was charged and convicted under Section 38 of the Sexual Offences Act, which had been repealed prior to the charge. The law requires that a person be charged with an offence known to law. Since the section under which the appellant was charged no longer existed at the time of the charge, the conviction...
Source-derived case information.
- Citation
- [2017] KEHC 6976 (KLR)
- Parties
- Appellant: Margaret Lesiayi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 84 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- MM Kasango
- Legal Topics
- Invalid Charge, Sexual Offences Act, Repealed Statute, Conviction Nullity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Lesiayi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was lawfully convicted under a section of law that had been repealed.
- 2 Whether a conviction based on a non-existent offence is valid.
Ratio Decidendi
The appellant was charged and convicted under Section 38 of the Sexual Offences Act, which had been repealed prior to the charge. The law requires that a person be charged with an offence known to law. Since the section under which the appellant was charged no longer existed at the time of the charge, the conviction was a nullity. The court relied on established legal principles and precedent to find that the conviction and sentence could not stand. Consequently, the conviction was quashed and the sentence set aside, with an order for the appellant's release unless otherwise lawfully held.
Court Disposition
appeal_allowed
Orders
- The conviction of Margaret Lesiayi is quashed.
- The sentence imposed is set aside.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL APPEAL NO. 84 OF 2016
MARGARET LESIAYI….................…………...APPELLANT
Versus
REPUBLIC………………………….….……RESPONDENT
(Being an appeal from the original conviction and sentence inMaralal Principal Magistrate’s Court Criminal Case No. 613 of 2013by Hon. B S Khapoya Ag Senior Resident Magistrate on 12th September 2013).
JUDGMENT
1. MARGARET LESIAYI was charged before Maralal Principal Magistrates court with the offence of making false allegations contrary to Section 38 as read with Section 11(1) and 20 (1) of the Sexual Offences Act No.3 of 2006. She pleaded guilty and was sentenced to serve 10 years imprisonment.
2. Although by this appeal Margaret sought to appeal against that sentence the state through Senior Principal Prosecution Counsel conceded to the appeal against conviction on the basis that Section 38 of Act 3 of 2006, under which Margaret was charged was repealed by Act 12 of 2012.
3. Indeed that is correct. It follows that Margaret was charged under a Section of the Law that does not exist. The prosecution is required, under the Law, to charge a person with an offence known in Law. This was clearly stated in the case of SIGILANI – VS - REPUBLIC [2004] 2 KLR 480, where court held that:
“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence charged should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defence.
4. Margaret Lesiayi was charged with an offence that does not exist in law. That being so her conviction was a nullity. Accordingly her conviction is quashed and her sentence is set aside. This court orders that she be released unless she is otherwise lawfully held.
DATED AND DELIVERED AT NANYUKI THIS 29THDAY OF MARCH 2017.
MARY KASANGO
JUDGE
CORAM:
Before Justice Mary Kasango
Court Assistant – Ndungu
Appellant: Margaret Lesiayi.................
For the State: ….....................................
COURT
Judgment delivered in open court.
MARY KASANGO
JUDGE