[2010] KEHC 3957 (KLR)
The court found that the charge sheet was fatally defective due to the omission of the word 'unlawfully', which is a material element of the offence under section 140 of the Penal Code. Additionally, the prosecution's evidence was riddled with contradictions regarding the age of the complainant and lacked...
Source-derived case information.
- Citation
- [2010] KEHC 3957 (KLR)
- Parties
- Appellant: Samuel Limareng Shakamer; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 141 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Defective Charge Sheet, Corroboration of Evidence, Standard of Proof, Contradictory Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Limareng Shakamer
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the omission of the word 'unlawfully' in the charge sheet rendered the charge defective.
- 2 Whether the prosecution proved the offence of rape beyond reasonable doubt.
- 3 Whether contradictions in the prosecution evidence and lack of corroboration affected the conviction.
Ratio Decidendi
The court found that the charge sheet was fatally defective due to the omission of the word 'unlawfully', which is a material element of the offence under section 140 of the Penal Code. Additionally, the prosecution's evidence was riddled with contradictions regarding the age of the complainant and lacked corroboration, as required by law. The P.3 form was filled three months after the incident, further undermining the reliability of the evidence. The magistrate erred in convicting the appellant on the basis of a defective charge and uncorroborated, contradictory evidence. The court held that the case could not be sustained even if sent for retrial due to want of proof. Consequently, the...
Court Disposition
appeal_allowed
Orders
- The conviction and sentence are set aside.
- The appellant is set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Criminal Appeal 141 of 2009
SAMUEL LIMARENG SHAKAMER ............................APPELLANT
VRS
REPUBLIC.................................................................RESPONDENT
JUDGMENT
The Appellant was charged and convicted of rape contrary to section 140 of the Penal Code by Bungoma Resident Magistrate. He was sentenced to seven (7) years imprisonment. He appeals against both conviction and sentence.
Mr. Situma for the Appellant argued all the grounds of appeal together. He submitted that the age of the complainant was not established. Secondly, that it was not established that the complainant was ever examined or treated. The charge is defective according to the Appellant and does not disclose an offence.
The Senior Principal State Counsel, Mr. Onderi conceded to the appeal. He agreed with the defence that the charge was defective having omitted some material particulars. There was no corroboration to the evidence as required by the law at that time since the Appellant was charged under the Penal Code. The state further submitted that the offence was not proved beyond reasonable doubt.
As for the charge sheet, I agree that the word “unlawfully” was committed under section 140 of the Penal Code an offence will only be disclosed where the act is unlawful as defined. The omission of the word “unlawfully” is fatal to the charge given the fact that the offence charged is pegged on that material word. The charge was defective and could not sustain a conviction.
On the evidence adduced, the key witnesses PW1, PW2 and PW3 contradicted themselves on the age of the complainant. For one to be convicted of rape, the age of the complainant has to be established that she was over 14 years. This was not done. The doctor said that the P.3 form did not indicate whether the complainant had been treated before examination. The P.3 form was filled about three months after the incident. This complicates the case further in that corroborative evidence which would have assisted in proof of the case was lost.
The accused who was a prison warder denied the offence and said he had signed off duty at the material time and returned his gun. His defence notwithstanding, the prosecution’s case was a mess bound to fail. Starting with a defective charge and followed by contradictory evidence, the prosecution cannot prove the case even if it was sent for retrial. I find it not suitable for retrial due to want of proof.
It is my finding that the magistrate erred in proceeding to hear the case and convict the Appellant on the basis of a defective charge. The contradictions in the evidence and lack of corroboration are issues which were not addressed in the judgment.
For these reasons, the appeal is successful. I therefore set aside the conviction and sentence. The Appellant is therefore set at liberty unless otherwise lawfully held.
F. MUCHEMI
JUDGE
Dated, delivered and signed at Bungoma
This 19th day of January, 2010 in the presence of the Appellant, the defence counsel Mr. Situma and the state counsel.