[2009] KEHC 271 (KLR)
The court found that the charge sheet was fatally defective as it omitted the essential ingredient of being armed with a dangerous weapon, which is required for the offence of robbery with violence under Section 296(2) of the Penal Code. Additionally, the trial was rendered a nullity due to the magistrate's failure...
Source-derived case information.
- Citation
- [2009] KEHC 271 (KLR)
- Parties
- Appellant: Vincent Mpaka Chivoli; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 50 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Defective Charge Sheet, Non Compliance With Procedure, Robbery With Violence, Section 200 Criminal Procedure Code
- 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
Vincent Mpaka Chivoli
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge sheet was fatally defective for omitting an essential ingredient of the offence of robbery with violence.
- 2 Whether non-compliance with Section 200 of the Criminal Procedure Code rendered the trial a nullity.
- 3 Whether the conviction and sentence could be sustained in light of the procedural defects.
Ratio Decidendi
The court found that the charge sheet was fatally defective as it omitted the essential ingredient of being armed with a dangerous weapon, which is required for the offence of robbery with violence under Section 296(2) of the Penal Code. Additionally, the trial was rendered a nullity due to the magistrate's failure to comply with Section 200 of the Criminal Procedure Code, which mandates that an accused be informed of the right to recall witnesses when a new magistrate takes over. Both defects were fatal to the prosecution's case, and the conviction and sentence could not be sustained. The court declined to order a retrial, noting the appellant had already spent over four years in custody...
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
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA
Criminal Appeal 50 of 2005
VINCENT MPAKA CHIVOLI.........................................APPELLANT
V E R S U S
REPUBLIC.................................................................. RESPONDENT
J U D G E M E N T
The Appellant, Vincent Mpaka Chivoliwas convicted by Kakamega Principal Magistrate’s court of the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. The mandatory death sentence was imposed. He now appeals against conviction and sentence.
Ms Osotsi for the Appellant took the court through the grounds of appeal which were mainly points of law. The counsel submitted that the charge was defective because it did not state that the accused was armed with a dangerous weapon. Secondly that S.200 of the Criminal Procedure Code was not complied with by the magistrate who took over the case. There were no recoveries made of the stolen property and if any the same were not produced in court. There were contradictions on the value of the maize stolen between the two key witnesses.
The State conceded to the appeal on grounds that the charge was defective and that S.200 C.P.C. was not complied with.
On the issue of the charge, the drafter omitted the words: “armed with dangerous weapons” which is one of the ingredients of the offence of robbery with violence. PW1 said he was assaulted by his three assailants with their hands and fists. The magistrate proceeded to convict the appellant of the offence of robbery with violence. In the absence of this important ingredient, a conviction cannot be sustained. The omission of the said particulars in the charge is fatal. The charge as it is defective. The prosecution ought to have amended the charge during the trial.
In regard to S. 200 of the Criminal Procedure Code, it is noted that this case was heard by two magistrates. Ms J. Thuita heard PW1, PW2 and PW3. Mr. S. M. Kibunja took the case over on 23/02/05. He proceeded to take the testimony of PW4 and PW5 without complying with or even referring to S.200 CPC. S. 200 (3) requires that the succeeding magistrate explains to the accused his rights of recalling witnesses. The response of the accused whether he wishes to recall the witnesses who testified before the preceding magistrate must be recorded. Failure to comply with these provisions is fatal to the prosecution’s case. The non-compliance renders the trial a nullity.
Due to the defective charge sheet and non-compliance with Section 200 CPC renders the trial and the conviction null and void. For this reason, we set aside the conviction and sentence.
The State Counsel did not apply for a retrial. We believe the reason may possibly be that the appellant has been in prison custody for about four and a half years awaiting the determination of this appeal. In the interests of justice, the appellant should not be subjected to a retrial which if ordered would cause him more suffering through further incarceration. The accused is hereby set at liberty unless otherwise lawfully held.
Judgement delivered on the 17th day of December, 2009 in the presence of the Appellants, their counsel Ms Osotsi and the State Counsel in open court.
FLORENCE N. MUCHEMI SAID J. CHITEMBWE
J U D G E J U D G E