[2009] KEHC 1825 (KLR)
The court found that the prosecution failed to establish that the alleged disturbance occurred in a public place, which is a necessary element of the offence under Section 95(1)(b) of the Penal Code. Since the incident took place on private land, the essential ingredient of the offence was not satisfied....
Source-derived case information.
- Citation
- [2009] KEHC 1825 (KLR)
- Parties
- Appellant: Moses Kipruto Mutai; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 30 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction set aside; appellant set at liberty unless otherwise lawfully held
- Legal Topics
- Breach of Peace, Elements of Offence, Public Place Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Kipruto Mutai
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the offence of creating disturbances likely to cause a breach of the peace was proved beyond reasonable doubt.
- 2 Whether the incident occurred in a public place as required by Section 95(1)(b) of the Penal Code.
Ratio Decidendi
The court found that the prosecution failed to establish that the alleged disturbance occurred in a public place, which is a necessary element of the offence under Section 95(1)(b) of the Penal Code. Since the incident took place on private land, the essential ingredient of the offence was not satisfied. Consequently, the conviction could not stand, and the appeal was allowed. The appellant was set at liberty unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction set aside; appellant set at liberty unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is set aside.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CRIMINAL APPEAL 30 OF 2007
(From original Judgment of A.G. Kibiru - SRM delivered on 8th May, 2007at KERICHO)
MOSES KIPRUTO MUTAI ……….………………… APPELLANT
VERSUS
REPUBLIC ……..………………………………….. RESPONDENT
JUDGMENT
I: Background
1. In this appeal, the appellant had been arrested and charged with the offence of creating disturbances likely to cause a breach of the peace contrary to Section 95(1) (b) of the Penal Code.
2. The complainant alleged that he went to enquire about his piece of land that the accused had sold to him being ½ an acre. The deceased lost his temper and took an axe and ran after him. The matter was reported to the police. The accused was arrested and the axe was later recovered in his house.
3. The accused denied committing the offence. He was convicted after trial and sentenced but released on being fined and later paying the said fine.
4. He appealed to this High Court where his appeal was heard.
In reply
5. The state said that the said evidence before Court shows the appellant did commit the offence.
Findings
6. The charge before Court under Section 95(1) (b) 94(a) of the penal code requires to have been committed in a public place. The incident occurred on a private land and area. I would accordingly find that the prosecution had not established their case beyond a reasonable doubt.
7. The appeal herein is allowed and is set aside unless otherwise appellant lawfully held the appellant is set at liberty.
DATED this 16th day of June, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocates
J.K. Rono advocate instructed by M/S J.K. Rono & Co. advocate for the Appellant – present
R.K. Koech Senior State Counsel instructed by the Attorney General for the State/Re
Appellant – present