[2013] KEHC 5912 (KLR)
The High Court found that the particulars of the charge and the facts as presented did not include the essential element of endangering life, which is a requirement under section 66(1)(b) of the Railway Act. Damaging a water pipe, without more, does not amount to endangering life. As such, the offence as charged was...
Source-derived case information.
- Citation
- [2013] KEHC 5912 (KLR)
- Parties
- Appellant: Patrick Alivayo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 153 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- GO Shikwe
- Legal Topics
- Damage to Property, Elements of Offence, Plea of Guilty, Railway Act Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Alivayo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the facts and particulars disclosed the offence under section 66(1)(b) of the Railway Act.
- 2 Whether the conviction and sentence were safe given the absence of the element of endangering life.
Ratio Decidendi
The High Court found that the particulars of the charge and the facts as presented did not include the essential element of endangering life, which is a requirement under section 66(1)(b) of the Railway Act. Damaging a water pipe, without more, does not amount to endangering life. As such, the offence as charged was not disclosed, rendering the conviction and sentence unsafe. The appeal was therefore allowed, the conviction quashed, and the sentence set aside.
Court Disposition
appeal_allowed
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 153 OF 2012
PATRICK ALIVAYO .................................................APPELLANT
VERSUS
REPUBLIC.................................................................RESPONDENT
(From the Original Conviction and Sentence in the Criminal Case No. 1612 of 2012 of the Chief Magistrate's Court at Mombasa – B.M. Ekhubi- RM)
JUDGMENT
The appellant herein was Convicted and Sentenced to four (4) years imprisonment for the offence of damaging railway property contrary to section 66 of the Railway Act Cap 397 of the Laws of Kenya.
The particulars are that on the 22nd day of May, 2012 at about 18:45 hours at Mombasa Railway Marshalling Yard Mombasa County, jointly, with others not before the Court, damaged a water pipe by digging it with a mattock and a spade valued at Ksh.20,000/= the property of Rift Valley Railways .
The Accused/Appellant pleaded guilty to the charge. Facts were read to him and he admitted them and was subsequently convicted and sentenced to four (4) years imprisonment.
Section 66 (1) (b) provides,
“ Any person who unlawfully damages or in any way interferes with any train, vessel, vehicle signal, points,rails, sleeper, light house, buoy,mark beacon or other property of the corporation in such a manner as to endanger or as might endanger the life of any person, shall be guilty of an offence and liable to imprisonment for a term not exceeding ten (10) years”.
The facts presented before the Court do not disclose the offence envisaged under the aforementioned section.
Damaging property is a subset of the offence but it must be shown that the damaging was in such a manner as to endanger or as might endanger the life of any person.
The particulars of the charge do not include the element of endangering life and hence are not in conformity with the offence contemplated by the aforementioned section. Digging a watter pipe in itself does not amount to endangering life.
The particulars of the charge and the facts do not disclose an offence.
The Conviction and Sentence were not safe. The appeal has merit. The Conviction is quashed and Sentence set aside. He is set at liberty unless otherwise lawfully held.
Judgment dated and delivered in open Court this 19th day of June, 2013
In the presence of:-
Learned state Counsel Mr. Mungai
Thee Accused present
Court clerk Musundi
..............
M. MUYA
JUDGE
21ST JUNE, 2013