[2000] KEHC 102 (KLR)
The court found that the charge against the appellant was duplex as it disclosed two separate offences but was presented as a single count. This defect meant the appellant could not be certain which offence he was pleading guilty to, resulting in a plea to two charges that were not distinctly charged. The trial...
Source-derived case information.
- Citation
- [2000] KEHC 102 (KLR)
- Parties
- Appellant: Safari Kombo Nzai; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 94 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed, sentence set aside, appellant to be re-arrested and charged properly
- Judges
- AI Hayanga
- Legal Topics
- Defilement, Duplex Charges, Plea of Guilty, Criminal Procedure Code, Conviction and Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Safari Kombo Nzai
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge against the appellant was duplex and therefore defective.
- 2 Whether the conviction and sentence based on a duplex charge can be sustained or cured under Section 382 of the Criminal Procedure Code.
- 3 Whether the appellant was prejudiced by pleading guilty to a charge that disclosed two offences.
Ratio Decidendi
The court found that the charge against the appellant was duplex as it disclosed two separate offences but was presented as a single count. This defect meant the appellant could not be certain which offence he was pleading guilty to, resulting in a plea to two charges that were not distinctly charged. The trial court failed to notice and act on this defect as required under Section 214 of the Criminal Procedure Code. The court held that such a defect is not curable under Section 382 of the Criminal Procedure Code because it occasioned a failure of justice. Consequently, the conviction and sentence could not stand, and the proper course was to quash the conviction, set aside the sentence,...
Court Disposition
conviction quashed, sentence set aside, appellant to be re-arrested and charged properly
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO. 94 OF 2000
(From the original conviction and sentence in Criminal Case No. 60 of 2000 of the Principal Magistrate’s Court at Malindi).
SAFARI KOMBO NZAI……….……………………………..APPELLANT
Versus
REPUBLIC…………………………………………………..RESPONDENT
J U D G E M E N T:
Appellant was charged with one count of defilement under Section 145(1) of the Panel Code and pleaded guilty to the charge. The particulars of the charge stated that he committed this offence between 5th May, and 13th October, 1999 but the facts as stated by the prosecution show that the appellant had carnal knowledge of the 13 year old herds girl by force on both dates but complaint was only as against the last one, the first one having been ignored by the grandmother who did not report it. The charge disclosed two offences and ought to have been charged separately. The charge was therefore duplex and the appellant could not have been certain which charge to meet and he was pleading guilty to. He pleaded guilty to two charges without same having been distinctivly charged. The court ought to have noticed and acted under S.214 of Criminal Procedure Code. Is this a case curable under S.382 of the Criminal Procedure Code?
I do not think so; but as he has not only appealed against sentence. State does not support the corporal punishment. This Court on appeal can only interfere where the sentence was based on wrong Principle or the Magistrate took extraneous matters into consideration or left out relevant matters from consideration.
I do not think the Magistrate was faulted here but only if the charge was correct. Here the charge was duplex, so the suspicion is that she took into consideration facts of a different charge which was not before her. I think the best order is to quash the conviction set aside the sentence and Order that appellant be re-arrested and charged properly before a court of competent jurisdiction.
That be the order of the court.
Delivered at Mombasa this 8th Day of November, 2000.
A.I. HAYANGA
J U D G E
Delivered to: Miss Kwena – State Counsel.
Appellant in person.
A.I. HAYANGA
JUDGE