[2007] KEHC 79 (KLR)
The court found that the charge sheet was fatally defective because it omitted the essential elements of the offence as required by the Sexual Offences Act, specifically the words 'unlawfully' and 'intentionally'. Additionally, the alternative charge under Penal Code Section 144(1) could not be sustained as the...
Source-derived case information.
- Citation
- [2007] KEHC 79 (KLR)
- Parties
- Appellant: Quarhane Gure Ali; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal NO. of 1979
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
- Legal Topics
- Defective Charge Sheet, Sexual Offences Act, Elements of Offence, Conviction and Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Quarhane Gure Ali
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the omission of the words 'unlawfully' and 'intentionally' in the charge sheet renders it fatally defective.
- 2 Whether a charge under Penal Code Section 144(1) could be sustained when the section had been repealed.
Ratio Decidendi
The court found that the charge sheet was fatally defective because it omitted the essential elements of the offence as required by the Sexual Offences Act, specifically the words 'unlawfully' and 'intentionally'. Additionally, the alternative charge under Penal Code Section 144(1) could not be sustained as the section had been repealed at the time of the alleged offence. As a result, the conviction and sentence could not stand, and the appeal was allowed.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CRIMINAL APPEAL NO. 79 OF 2007
From the original Conviction and Sentence in Criminal Case No. 421 of 2006 of the Resident Magistrate of Ingutya Court at Wajir.
QUARHANE GURE ALI ……………………………APPELLANT
V E R S U S
REPUBLIC …………………………………………… RESPONDENT
J U D G M E N T
This appellant is charged with offences committed on 22/12/2006. By that date the new law sexual offences Act (Act No. 3 of 2000) had come into operation, therefore the particulars of the offence of rape are contained in section 4 of the act namely; Any person who attempts to unlawfully and intentionally………….” is guilty of the offence of rape.
It is clear that the attempt must be unlawfully and intentionally, otherwise no offence is committed.
In the charge sheet aforementioned those words “unlawfully” and “intentionally” are omitted. On the alternative charge the appellant was charged with an offence under Penal Code Section 144 (1). This section was at the time repeated and therefore no charge can be sustained. In these circumstances it is clear the charge sheet is fatally defective.
I agree with the state that the charge cannot be supported and I therefore allow the appeal and quash conviction and set aside sentence imposed on the appellant.
The appellant shall be set at liberty forthwith unless otherwise lawfully held.
Dated 25th October 2007.
25/10/2007
Khaminwa- Judge
Njue – Clerk
State Counsel Mr. Kimathi
Counsel for Appellant Mr. Rukenya.
Read in open court.
J. N. KHAMINWA
JUDGE