[2006] KEHC 371 (KLR)
The court found that the appellant was charged and convicted under section 322 (a) of the Penal Code for the offence of arson. However, section 322 (a) relates to handling stolen property, not arson. The correct provision for arson is section 332 of the Penal Code. The failure to cite the correct section rendered...
Source-derived case information.
- Citation
- [2006] KEHC 371 (KLR)
- Parties
- Appellant: Richard Omangi Sauri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 63 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
- Legal Topics
- Defective Charge Sheet, Arson, Sentencing, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Omangi Sauri
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge against the appellant was defective due to incorrect citation of the Penal Code section.
- 2 Whether the conviction and sentence could stand in light of the defective charge sheet.
Ratio Decidendi
The court found that the appellant was charged and convicted under section 322 (a) of the Penal Code for the offence of arson. However, section 322 (a) relates to handling stolen property, not arson. The correct provision for arson is section 332 of the Penal Code. The failure to cite the correct section rendered the charge sheet defective. As a result, the conviction was invalid, and the sentence could not stand. The court therefore quashed the conviction and set aside the sentence, ordering the appellant's immediate release unless otherwise lawfully held.
Court Disposition
conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Criminal Appeal 63 of 2005
RICHARD OMANGI SAURI ……..……………………….. APPELLANT
VERSUS
REPUBLIC ……………….…………….…………..…….. RESPONDENT
(From original conviction and sentence of the RM’s court at Keroka in criminal case No. 504 of 2005 – A.A. INGUTYA, S.R.M.)
JUDGMENT:
Appellant was convicted for the offence of Arson contrary to section 322 (a) of the Penal Code in that on 16th June 2005 at Miriri Sub-Location in Nyamira District willfully and unlawfully set fire to a building namely Kitchen belonging to Sabina Nyaboke Sauri. He pleaded guilty and was sentenced to 20 years imprisonment. He has appealed against the sentence.
The learned state counsel considered to the appeal and stated that the sentence was excessive.
I have considered the appeal. Though it is against sentence only. I find that the charge appellant was convicted of was defective. He was charged with offence of Arson contrary to s.322 (a) Penal Code. There is no offence like that. S. 322 (a) of the Penal Code provides for the offence of handling stolen property and not of Arson.
Offence of Arson is provided for in s. 332 of the Penal Code but this was not the section quoted in the charge sheet. The charge was therefore clearly defective and on that score alone the conviction was wrong.
I therefore quash the conviction and set aside the sentence. Appellant be set at liberty forthwith unless otherwise lawfully held.
Dated 7th March 2006.
KABURU BAUNI
JUDGE
Cc – Mobisa
Mr. Kemo for respondent