[2009] KEHC 1030 (KLR)
The court found that Section 8(1) of the Sexual Offences Act does not itself create an offence nor provide a penalty clause. As such, the charge and subsequent conviction of the appellant under this section were unlawful. The conviction was quashed and the sentence set aside. However, since there was no objection...
Source-derived case information.
- Citation
- [2009] KEHC 1030 (KLR)
- Parties
- Appellant: Stephen Mwau Mutinda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 166 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; retrial ordered
- Legal Topics
- Defilement Offence, Sexual Offences Act, Conviction Quashing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Stephen Mwau Mutinda
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge and conviction under Section 8(1) of the Sexual Offences Act was lawful.
- 2 Whether the absence of a penalty clause in Section 8(1) invalidates the conviction.
Ratio Decidendi
The court found that Section 8(1) of the Sexual Offences Act does not itself create an offence nor provide a penalty clause. As such, the charge and subsequent conviction of the appellant under this section were unlawful. The conviction was quashed and the sentence set aside. However, since there was no objection from the respondent, the court ordered a retrial before the Chief Magistrate's Court at Machakos.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; retrial ordered
Orders
- The appeal is allowed.
- The conviction is quashed and the sentence set aside.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Criminal Appeal 166 of 2008
STEPHEN MWAU MUTINDA ……………………………………………… APPELLANT
VERSUS
REPUBLIC ………………………………………………………………….. RESPONDENT
(Appeal from a Judgment of the Resident Magistrate’s Court at Yatta (Hon. A.W Mwangi Ag. SRM) dated 7th August 2008)
in
(SRM’S CR.C. No. 1104 of 2007)
*************************
JUDGMENT
1. The Appellant was charged with the offence of defilement under Section 8 (a) of the Sexual Offences Act. He was convicted and sentenced to life in prison.
2. Section 8 (1) does not disclose any offence and has no penalty clause. The import is that the Appellant was unlawfully charged and convicted.
3. However since there is no objection, he will be retried at Machakos CM’S Court.
4. The Appeal is allowed. His conviction is quashed, sentence set aside and he will appear before the SPM Machakos on 13/11/2009.
5. Orders accordingly.
Dated and delivered at Machakos this 12thday of November2009.
ISAAC LENAOLA
JUDGE