[2003] KEHC 436 (KLR)
The court found that the particulars of the charge against the appellant omitted the word 'unlawful' between 'had' and 'carnal', resulting in a charge that did not disclose any offence known to law. This omission rendered the charge fatally defective. Consequently, the conviction and sentence based on such a charge...
Source-derived case information.
- Citation
- [2003] KEHC 436 (KLR)
- Parties
- Appellant: Morris Ochieng Sewe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 188 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction and sentence set aside; retrial ordered
- Judges
- JW Lessit
- Legal Topics
- Defilement, Defective Charge, Penal Code Section 145, Unlawful Carnal Knowledge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Morris Ochieng Sewe
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge as framed disclosed an offence known to law.
- 2 Whether omission of the word 'unlawful' in the particulars rendered the charge fatally defective.
- 3 Whether the conviction and sentence could stand in light of the defective charge.
Ratio Decidendi
The court found that the particulars of the charge against the appellant omitted the word 'unlawful' between 'had' and 'carnal', resulting in a charge that did not disclose any offence known to law. This omission rendered the charge fatally defective. Consequently, the conviction and sentence based on such a charge could not be allowed to stand and were set aside. However, since the appellant had only served two years of the ten-year sentence, which was not considered a substantive part of the sentence, the court ordered a retrial before a court of competent jurisdiction.
Court Disposition
conviction and sentence set aside; retrial ordered
Orders
- The conviction is set aside.
- The sentence is set aside.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURUCRIMINAL APPEAL NO.188 OF 2001 (From original conviction and sentence in Criminal Case No.524 of 2001 of the Senior Resident Magistrate Court at NAIVASHA –I.K. MUTAI(R.M.)
MORRIS OCHIENG SEWE…………………………APPELLANT
VERSUS
REPUBLIC……………………………………………RESPONDENT
J U D G M E N T
The Appellant MORRIS OCHIENG SEWE was charged and convicted of an offence of DEFILEMENT OF A GIRL contrary to Section 145(1) of the Penal Code. Particulars of charge were:-
“That on the 14 th day of March, 2001. At [particulars withheld] in Nyandarua District within Central Province had Carnal knowledge of R.W.N a girl under the age of 14 years.”
He has appealed against the sentence of 10 years imprisonment and 4 strokes of the cane. The appeal is opposed on grounds the sentence was not excessive.
Looking at the charge facing Appellant, particularly the particulars, it is not a charge known to law. The particulars of the charge have omitted the word “UNLAWFUL” between the words “had” and “carnal”. That makes the particulars of the charge fatally defective and they do not disclose any offence known to law. For the Appellant to have been convicted of that charge was wrong. The conviction cannot be allowed to stand and is set aside. The sentence is also set aside.
The Appellant has served only 2 years out of the 10 years Imprisonment. That cannot be said to be a substantive part of the sentence. I will order for a retrial of this case before a court of competent jurisdiction.
Orders accordingly.
JESSIE LESIIT JUDGE5. 6.2003 Read, signed and delivered in presence of The Appellant Mr. Onderi for Respondent absent.
JESSIE LESIIT JUDGE 5. 6.2003