By Ms Lichuma
TOPIC 6: CHARGES AND
INFORMATION
INSTITUTION
OF CRIMINAL PROCEEDINGS
This is the process by which one
accesses the courts for trial of criminal offences which relies on the law of
evidence. The constitution lays the foundation upon which criminal procedure is
premised. Under s.89 (1) of the criminal procedure code it is the making of a
complaint to the police against a person or the bringing of a person before a
magistrate without a warrant of arrest to institute a legal claim against them
for a crime committed.
The parties to criminal proceedings are the State as
the main complainant. However, the Criminal Procedure Code allows private
prosecution. Citizens who feel that the state is not willing to take up
their cases and have to tender evidence in court can approach court and the
court at its discretion has to agree to allow the person bringing the private
prosecution whether to proceed.
The process starts by way of a
complaint done through the police process. The person alleging is required to
write a statement, produce witnesses and record witness statements. If an offence has been committed the police
make the decision to arrest the culprit and take him to court.
Private Prosecution
Art. 157(6) (b) of the Constitution empowers
the DPP to take over and continue any such criminal proceedings that have been
instituted or undertaken by another person or authority.
Section 88(1) of the Criminal Procedure
Code confers the right to institute criminal proceedings on any person by means
of complaint to a Magistrate, and confers the right to any person to conduct
the prosecution subject to the permission of "any Magistrate trying the
case". The right to private prosecution has been said to be "a useful
constitutional safeguard against capricious, corrupt, or biased failure or
refusal of police forces and the office of DPP to prosecute offenders of
criminal law[1]".
Public
proceedings
The Constitutional basis of criminal
prosecution is founded on Art. 157(6) of the constitution which provides: "The DPP shall have power in any case in
which he considers it desirable.”
The foregoing provision underscores
that under Kenyan law it is the State, through the DPP, which is bestowed with
the power of controlling criminal prosecutions. This was the position of the
Court of Appeal of Kenya in the case of Jopley Constantine Oyieng' v
Republic[2]
wherein the court observed, that only the Attorney-General has the
right to institute criminal proceedings. No similar right is extended to a private individual and it is obvious
that section 88(1) of the Criminal Procedure Code does not override art. 26 now
157 of the constitution. The state is therefore the prosecutor in
all criminal prosecutions[3].
The question of who has the right to
prosecute is even more pronounced in appeals. On the one hand section 348(a)
provides that: "when an accused
person has been acquitted on a trial held by a subordinate court, or where an
order refusing to admit a complaint or formal, charge, or an order dismissing a
charge, has been made by a subordinate court, the DPP may appeal to the High
Court from the acquittal or order on a matter of law".
This provision seems to oust from the scope,
of a private prosecutor conduct of criminal appeal, and to rest on the DPP
monopoly right of prosecuting criminal appeals a position which was upheld in Riddlesbarger
v Robson[4].
On the other hand, the Court of Appeal in Republic Thro' Devji
Kanji v Davendra Valji Halai[5]
held that a private prosecutor has a right of appeal against an acquittal.
Faced with those two conflicting authorities, in the case of Charles
Wainaina v H. K. Ndegwa [6]the
High Court decided that it was bound by the latter case being the most recent
in point of time.
PERSONS
WHO MAY INITIATE CRIMINAL PROCEEDINGS
i.
The DPP
Article 157 of
the Constitution of Kenya 2010 establishes the office of the Director of Public
Prosecutions. It authorizes the DPP to institute and undertake criminal
proceedings against any person before any court, other than a court martial, in
respect of any offence alleged to have been committed.[7]
Following the
promulgation of the Constitution 2010, the Office of Director of Public
Prosecution (ODPP) was officially delinked from the State Law Office (office of
the A.G) in July 2011. As a result, Article 157 and 158 of the Constitution
that gives authority to the Director of Public Prosecution (DPP) to control
prosecutions in the Republic of Kenya was given effect by the ODPP Act No. 2 of
2013 which came into effect on 16th January, 2013.[8]
ii.
The police
Generally,
allegations of criminal activity are reported to the police. Before a
prosecution is mounted, there has to be an investigation into the offence
allegedly committed. Article 157(4), authorizes the DPP to direct the
Inspector-General of the National Police Service to investigate any information
or allegation of criminal conduct and the Inspector-General shall comply with
any such direction.[9]
iii.
A
private
individual
Anyone who has reasonable grounds
to believe that a person has committed an offence may lay an information in
writing sand under oath before a justice of Peace. Section 88(1) of the CPC
enables a private individual to initiate criminal proceedings in court subject
to being allowed to do so by the court.
Pursuant to section 66 of the Criminal
Procedure Code, every court has authority
to cause to be brought before it any person who is within the local limits of
its jurisdiction and is charged with an offence committed within Kenya, or
which according to law may be dealt with as if it had been committed within
Kenya, and to deal with the accused person according to its jurisdiction.
Under
section 89(1)
of the Criminal Procedure Code, proceedings may be instituted either by the
making of a complaint or by the bringing before a magistrate of a person who
has been arrested without warrant. Section 89(2) of the CPC provides that, a person
who believes from a reasonable and probable cause that an offence has been
committed by another person may make a complaint thereof to a magistrate having
jurisdiction.
GROUNDS
FOR INSTITUTING CRIMINAL PROCEEDINGS
As already established, the Director of
Public Prosecutions may institute and undertake criminal proceedings against
any person before any court in respect of any offence alleged.[10]
In the case of Republic v Attorney General and another ex parte Ng’eny, High
Court stated that the Attorney General enjoys both constitutional and statutory
discretion in the prosecution of criminal cases and this should be applied to
the Director of Public Prosecutions.[11]
The decision to prosecute is the most
problematic role of a prosecutor as there are no such authorities to guide them
on what grounds they can institute criminal proceedings. The prosecution has to
rely on the statements of the witnesses in the investigation files. The
following are the grounds:
1.
The
existence of prima facie evidence- This is the evidence
upon which a court, properly directing itself upon law and evidence, is likely
to convict in the absence of an explanation from the accused. After the prosecutor
has read the complaint, the witness statements, the documentary evidence and
other material, he must be satisfied that there is a realistic prospect of
conviction. The prosecutor must keep in mind the admissibility of the evidence
and the reliability of the witnesses for him to institute a criminal
proceeding.[12]
2.
Public
Interest- The Director of Public Prosecutions has to assess
whether the public interest will be served best by the prosecution. Where the
accused person poses a serious threat to the welfare of the society, then the
prosecutor has enough ground to commence a criminal proceeding, because he has
an overriding duty to the public interest. Offences committed involving
offensive weapons, breach of peace or whether an offence was against a law
enforcement officer or a public servant, are grounds to institution of criminal
proceedings.[13]
3.
Gravity
of the offence- If the circumstances surrounding the
commission of the offence and its nature are of utmost gravity, for example,
murder or rape, then the prosecution must commence a criminal proceeding.
CHARGES
AND INFORMATIONS
The charge and information may be
considered as:
a)
Generally, an offence that is committed,
for instance a charge of murder, theft or assault, or
b)
Specifically, the document that
discloses a particular offence. This is the statement of the offence or
offences which the accused person is alleged to have committed and the
particulars thereof.[14]
The charge may also be described as
being the process by which the accused and the magistrate or judge is informed
of a suspected offence.[15]
The charge sheet is a formal complaint
against an accused person. It must:
a)
Be in writing or if made orally it must
be reduced into a written document. This document should be signed by both the
complainant and the magistrate as per the Criminal Procedure Code, section
89(3). The police could also sign the charge.
b)
Contain a statement of a specific
offence or offences with which an accused is charged. The statement of the
offence gives a brief description of the offence in ordinary language.
c)
The statement of offence should be
specific. Where it is under strict liability, it must contain the section of
the Act that creates it. It must provide the section of the Act in which the
offence has a sanction or the punishment section. Although the statement of
offence must be in ordinary language, where the offence is technical, the
statement of offence should include the elements of the offence.
d)
Contain the particulars of the offence
which give the necessary ingredients or elements of the offence. It gives the
nature of the offence.
The purpose of the charge sheet is
twofold. First it gives information to the court about a suspected offence.
This helps the court to make a finding and to determine upon the alleged
offence, with regard to the law. Secondly, it gives information to the accused
about an alleged offence. This gives the accused sufficient details to answer
to the charge. It also affords him an opportunity to prepare a defence.
These two purposes would be defeated if
a charge is not properly framed. In the Ugandan case of Martino Judagi and Others v West Nile District Administration[16],
Udo Udoma CJ held that the failure to frame a charge was a fundamental and
fatal mistake; it would thus render a subordinate’s trial a nullity.
JOINDER OF PERSONS
It refers to the joining or charging
together of two or more accused persons within the same charge or information;
and trying them together within the same proceedings[17].
The persons may be jointed if:
a) The persons accused of the same
offence persons accused of the same offence committed in the course of the same
transaction;
(b) The persons accused of an offence
and persons accused of abetment, or of an attempt to commit the offence;
(c) The persons accused of more offences
than one of the same kind (that is to say, offences punishable with the same
amount of punishment under the same section of the Penal Code or of any other
Act or law) committed by them jointly within a period of twelve months;
(d)The persons accused of different
offences committed in the course of the same transaction;
(e)The persons accused of an offence
under Chapters XXVI to XXX, inclusive, of the Penal Code, and persons accused
of receiving or retaining property, possession of which is alleged to have been
transferred by an offence committed by the first-named persons, or of abetment
of or attempting to commit either of the last-named offences;
(f) The persons accused of an offence
relating to counterfeit coin under Chapter XXXVI of the Penal Code, and persons
accused of another offence under that Chapter relating to the same coin, or of
abetment of or attempting to commit any such offence[18].
In the case of Malebe v Republic[19].The
three appellants faced separate counts of stealing by servant in one charge
sheet. The particulars stated that the offence were committed on separate
dates. The items that were alleged to have been stolen were different. They
were not charged as having had a common intention. They appealed against their
convictions and sentences. The high court held that a joint charge against
several accused persons alleged to have committed separate offences on
different dates amounts to a misjoinder and such charge is defective. There
should have been a separate charge for each person and separate count for each
alleged offence committed on a different date.
JOINDER
OF COUNTS
Joinder means the action of charging
together[20].
Under the Criminal Procedure Code it states that any offences whether felonies
or misdemeanors may be charged together in the same charge or information if
the offences charged are founded on the same facts or form or are part of the
series of the offences of the same character or similar character[21].
The case of Kamwana s/o Mutia v R the appellant appealed against conviction and
sentence on three counts involving theft, breaking and entering the premises
and possession of bhang. The fourth charge was not treated as an issue at the
trial but when the appellant had been convicted on the other three counts, he
asked that this offence to be taken into consideration whereupon the magistrate
purported to convict him of his offence and composed for it a separate
sentence. On appeal the Supreme Court of
Kenya held that the count charging the appellant with possession of bhang
shouldn’t have been included in the same charge sheet with the other three
dissimilar counts but since no justice resulted from the improper joinder, the
trial of the other three should not be treated as a nullity.
The joinder of counts has an advantage
to the accused person. They are:
·
It saves the accused person the legal
costs and also affords him the opportunity of serving concurrent sentences in
the event that he is convicted.
Where the accused person is alleged to
have committed more than one offence, he may be charged in the same proceedings
with all the offences[22].
Where the offences which are founded on
the same facts or do not form part of a series of the same or similar character
are charged in the same charge sheet or information will be ruled as improper
and it will be misjoinder of the counts.
During the trial period there are times
when the accused person who is charged with more than one offence may be
embarrassed in his defense for being charged with more than one offence. The
accused person can be tried separately for any of the offences. The court may
order a spilt trial which is referred to as separation of trials.
Under the Criminal Procedure Code it
states where, before a trial upon information or at any stage of the trial, the
court is of the opinion that the accused may be prejudiced or embarrassed in
his defence by reason of being charged with more than one offence in the same
information, or that for any other reason it is desirable to direct that the
accused should be tried separately for any one or more offences charged in an
information, the court may order a separate trial of any count or counts of the
information.[23]
RULES
FOR FRAMING CHARGES
The rules for framing charges are
provided under section 137 of the Criminal Procedure Code. The rules give
guidelines on how to frame all charges and information. Forms provided in the
Second Schedule, or forms conforming as nearly as may be shall be used.
The rules provide that a count of a
charge or information must commence with a statement of offence and followed by
the particulars of the offence. The statement and particulars of the offence
should be in ordinary language. In the case of Oremo v Republic,[24] a
conviction was quashed where the accused was charged with a non-existent
offence.
Further, section 137(b) (i) provides
that where a statutory provision creates an offence in the alternative, the
alternative offence shall be stated as an alternative count. In addition where
there is more than one count, the counts should be numbered consecutively.[25]
With regards to description of
property, persons and documents, it should be in ordinary language. It shall also be sufficient to describe a place, time,
thing, matter, act or omission to which it is necessary to refer in a charge or
information in ordinary language. In the case of Evans Masese Mose v Republic,[26]
the Court held that where the property in the charge or the information was not
described, such omission was fatal to the entire charge and the subsequent
conviction and sentence.
Where a statutory provision does not
make intention an ingredient of the offence, a statement of intent is not
necessary. The rules of framing charges also provide that a previous conviction
should be charged at the end of a charge sheet. Commonly used figure and
abbreviations may also be used in a charge sheet.
In addition, for the offences of
stealing property specified under section 280, 281, 282, and 283 of the Penal
Code, it shall be sufficient to specify the gross amount of property which is
alleged to have been stolen.
DUPLICITY
It can be defined as the technical
fault of writing two or more causes of action in one count in a writ, or two or
more grounds of defense in one plea, or two or more breaches in a replication,
or two or more offences in the same count of an indictment.
A duplex charge is a fundamental
mistake and not normally curable because the fairness of the process is
fundamentally compromised and it is not clear to the accused what the exact
charges that confront him/her are. He may therefore not be able to prepare a
proper defense hence this is prejudicial to him and may amount to a failure of
justice.[27]
The basis is that the accused should be informed at the very outset, what the
specific offence which is being alleged and if established, to have certainty
that he or she has been found guilty
The test is whether a failure of
justice has occurred or the accused has been prejudiced by it.[28]
An injustice will be occasioned when evidence is called relating to many
separate acts all contained in one count because the accused cannot possibly
know what the exact offence he is charged with as was held in Omboga v Republic[29].
Exceptions
Duplicity can be avoided where a
statute creates offences in the alternative for example section 46 of the
Traffic Act[30]
provides for offences created in the alternative, i.e. causing death by driving
a motor vehicle and driving recklessly, driving at high speed, driving in a
manner dangerous to the public and leaving the motor vehicle on the road in a
manner dangerous to the public. These
four are created in the alternative and you cannot be charged of two or more
but only one of the alternatives e.g. a count charging an accused of causing
death by driving the motor vehicle recklessly, and at high speed is duplex. The
separate offences are charged conjunctively using the word ‘and’ as opposed to
‘or’ if the matter relates to one act as was held in Gichinga v Republic where the particulars stated that, he drove in
a reckless manner and at a speed dangerous to the public contrary to section 86
of the Traffic Act”, that had it been expressed using the disjunctive ‘or’ it
would have been duplex.
When the form of preferring a charge is
allowed by a statute to be duplex, for example, the second schedule to the CPC
allows charging of two offences in one count under sec. 304(burglary) together
with section 279(stealing) and also section 330 of the Penal Code[31](
Fraudulent and False Accounting). In Pope
v Republic[32]
the accused was charged under section 330 of the Penal
Code with fraudulent and false accounting
and it was held that the charge was not duplex for it only charged one offence
and was in the form authorized by the second schedule to the CPC.
Effects
of duplicity
There are two opposing views and the
law is not clear;
1.
Duplicity is an incurable defect which
cannot be cured by amending the charge hence if found to be duplex the accused
should be discharged.
2.
It is founded on section 382 of the CPC
that the true test should be whether injustice or prejudice has been occasioned
on the accused by the duplicity so that where the accused suffers no prejudice;
conviction based on duplicity should stand. In Kababi v Republic[33],
the appellant was charged in a single count with causing the death of three
persons by dangerous driving. On appeal, it was held that failure to charge or
to file three separate counts did not occasion an injustice though there was
duplicity.
OVERLOADED
CHARGES
Overloaded charges may be referred to
as a charge sheet that contains unnecessary and unreasonable number of counts
on an indictment. Even though overloaded charges have not been provided for in
law, a charge sheet must be done in the interest of justice; in this regard it
calls to balancing the risk of prosecuting the case properly and the
practicability of trying the whole charge sheet at one time. The indictment
should however not be overloaded with unnecessarily large number of counts.
In the case of Makhura And Another v The State[34]
Makhura’s charge sheet was a book running 63 pages with 177 counts The
accused pleaded guilty to the 177 counts before the senior magistrate sitting
in Gaborone (Botswana). He was convicted and sentenced to a 3yr jail time which
was unnecessary since lower number of count would still have made the same
outcome.
This case sets an example of a lot of
work which is unnecessary which had very little value to the court due to
overloaded charge sheets. This in any case amounted to waste of time to both
the court and the one who drafted the charge sheet. The type and number of
counts to be included in the indictment should depend on an assessment of the
evidence and the nature of each case presented. A prosecutor should make
sufficient counts that reflect the full criminality alleged and thereby enable
the sentencing judge to make a sentence that properly reflects the criminality
but not include unnecessary and unreasonable counts that will lead to
complexity and length to the judges and to him as well.
Lord Goddard in R v Hudson and another[35]
pointed out that having a large number of counts in one charge sheet is
undesirable He pointed out that where the offences are too many the prosecutors
ought to be compelled to proceed with a certain number only which is
reasonable. However, if there is no conviction on any then they may consider
proceeding with any other counts in the indictment.
The modern England allows up to 20
counts with one accused and up to 40 accounts with many accused in exceptional
circumstances of the case. In RvN; Rv
D;Rv L[36]
the lord chief Justice warned against unnecessary counts on an indictment, he
further said that drafting an indictment required close attention to;
a) The
realities of the case and none to the theoretical legal possibilities which
might arise.
b) The
criminality involved.
c) The
evidence to support the allegation.
d) The
avoidance of duplication.
e) The
risk of unnecessary complications for both the jury and the judge.
in Kipleting
Keino Cheres & Kibet Mengich v Republic The appellants
have raised 8 grounds of appeal. The
first ground is founded on the charge sheet.
The Appellants contend that by allowing proceedings on an extensive and
overloaded charge sheet with numerous counts unknown to the Appellants the
trial magistrate erred in law and fact.
This however was not granted since 9 counts were within a reasonable
amount. The court itself stated:-
“.....Usually, though not invariably, no more than twelve counts should be
laid in one charge sheet.....”
in Richard
Lenguro Ramacha Lonkiyia Lelikat Jacob
Lelemeuwa v Republic and In the case of Ochieng v Rep (1985)KLR 252, The Court of Appeal had occasion to
deal with an appeal in which the appellant had been charged with 44 counts. The
court held that it was undesirable to charge the accused person with so many
counts in one charge sheet as that may occasion prejudice. The court said that
ordinarily, one should be charged with not more than twelve counts in one
charge sheet. In making that decision, the court relied on the English
decisions in R v Hudson and Hagan (1952)
36 CAR 94 and R v Novac & Others (1977) 65 CAR 107 at pg 118. In the
latter case, the court said:-
“We cannot conclude this judgment
without pointing out that, in our opinion, most of the difficulties which have
bedeviled this trial, and which have led in the end to the quashing of all
convictions except on the conspiracy and related counts, arose directly out of
the overloading of the indictment...… But even in its reduced form: the
indictment of 19 counts against four defendants resulted, as is now plain, in a
trial of quite unnecessary length and complexity.”
DEFECTIVE
CHARGES
A charge is said to be defective when a
problem arises in the manner in which a charge sheet is drawn. Such defects may
arise in a number of ways first among them being where there is duplicity of
charges. This is a fundamental defect and is not normally curable.[37]
Secondly a charge is deemed to be defective if wrong or non-existent sections
of the law are stated; particularly if the same would result in a failure of
justice or would cause prejudice to the accused.
When drafting charges the prescribed
offences should be read together with their essential ingredients so as to
ensure that the statement of offence discloses both the offences and the
penalty. There exist provisions that are descriptive of the offence but do not
constitute the statement of offence. One such provision is section 267 and 268
of the Penal Code which describe theft but the offence of stealing and the
penalty thereof are set out under Section 275. Robbery for instance is set out
under section 295 of the Penal Code but the essential ingredients are set out
in the specific types of robbery under section 296(1) and (2). The same goes
for the offence of murder for which section 203 and 20 of the Penal Code are
combined in the statement of the offence. Failure to state the particulars of
the offence together with the requisite ingredients would therefore render the
charge defective.
In the event that an offence is not
completed or is intercepted in the process but the culprit is arrested, the
preferred charge is an attempt of the main charge. In drawing the charge
therefore, the provisions of the main offence and the provisions of the
attempted commission should be combined lest the charge be deemed defective.
Offences such as conspiracy to commit
an act prohibited by the law are peculiar offences because: the essential
ingredient of the offence requires that there must be more than one person
charged with the offence, and particulars will show that other persons are
involved in the commission of the offence. If in the charge sheet only one
person is charged with the offence then the charge is defective.
It is important to note however that
not every defect or omission defeats a charge. In Alwi v Republic[38] it was held that a mere technical
defect in the charge sheet which is not fundamental and does not cause a
failure of justice is curable. Under section 214 of the CPC therefore a court
may order the change, amendment or substitution of the charge or addition of a
new charge at any time before the close of the prosecution case if it is of the
view that the charge is defective in form or substance. The accused person will
then be called upon to plead to the altered charge.
AMMENDMENT
OF CHARGES
There is a provision for amendment of
charges[39];
section 214 of the CPC states, ‘where at
any stage of trial before the close of the case for the prosecution, it appears
to the Court that the charge is defective either in substance or in form, the
Court may make such order for the alteration of the charge, either by way of amendment of the charge, or by the
substitution or addition of a new charge, as the Court thinks necessary to meet
the circumstance of the case.’
This
section’s effect is if it appears to the Court that the charge should be
amended, it can move itself and require the prosecutor to amend the charge.
Alternatively, the prosecutor can make an application to the Court to amend the
charge. A new charge is brought with red
under linings to show that it has been amended. See Maina vs. R [1954] 21 EACA 252
If
in the course of evidence it emerges that other charges that ought to have been
drafted were not drafted, the Court can direct they be drafted. The Court shall
call upon the accused person to plead the additional or substituted charges.
Where
charges are altered, accused may demand that the witnesses or any of them be
recalled and give evidence afresh or be further cross-examined by the accused
or his advocates i.e. once a charge is altered or amended, the accused is at
liberty to require the witnesses who had already given evidence to be recalled
to either give evidence afresh or to be re-examined.
Variance
between Charge, Evidence, and Amendment of Charge
In
the Court file, in the proceedings, it must be indicated that section 214 (1)
of the CPC was complied with. The charge will be read and explained to the
accused person. The accused is required to respond.
Read: S 214 (2) of the
CPC
Illustration: most
common variance- time- proceedings take place long after offence and witness
may give varied times- the provision is saying, that variance in time should
not be a material thing to require amendment provided the proceedings were
instituted in time.
QUASHING
CHARGES
Section 276 of the CPC provides for
quashing of a charge or information. The section applies in case there is a
defect in the charge. A charge sheet is fatally defective if it does not allege
an essential ingredient of the offence[40].
The principal law governing charge sheets is that an accused should be charged
with an offence known in law. The offence charged should be disclosed and
stated in a clear and unambiguous manner so that the accused may be able to
plead to a specific charge that he can understand[41].
It will also enable an accuse person to prepare his defence. A defect in such a
charge however does not lead to an automatic quashing of the charge unless the
defect has occasioned a failure of justice or has prejudiced the accused[42].
In
Paul Nyamache Nyamwamu v Republic[43] The
prosecution sought to withdraw a charge against the accused under section
276 as a result of inadequate evidence
against the accused and due to the fact that they wanted to enlist him as a
prosecution witness. The judge ruled that the application was not competent in
law as section 276 applies to a situation where there is a defective charge and
not where the accused was arraigned prematurely in court before the conclusion
of investigation which revealed there was no evidence to link the accused to
the crime. The judge did however allow withdrawal of the charges citing Article
157 (2) of the Constitution.
If an information does not state, and
cannot by amendment authorized by section 275 be made to state, an offence of
which the accused has had notice, it shall be quashed either on a motion made
before the accused pleads or on a motion made in arrest of judgment[44].
In Denis
Rono Kibet v Republic[45],
the accused pleaded guilty to a charge of defilement contrary to Section 8 (1)
(2) of the Sexual Offences Act of 2006 in the trial court and was sentenced to
20 years in prison. He appealed on the ground that the charge was incompetent
and incurably defective, hence plea was equivocal. The judge found that the
charge was defective as the section and subsection do not exist. In his
allowing the appeal the judge held that:
“It
is assumed that persons appearing in court are supposed to know the law so that
the appellant was supposed to object to the charge as being defective.
Unfortunately, the appellant was unrepresented when he appeared before the trial
court for plea. Care must be taken when taking a plea of guilty so that the
charge and its particulars should be clearly framed to enable the accused
person understand what they are charged for and the likely punishment the court
will met out. In the absence of clarity in the charge and its particulars, a
failure of justice may occur like it happened
If section 276 is invoked, every
statement of every such motion shall be delivered to the Registrar or other
officer of the court by or on behalf of the accused and shall be entered upon
the record[46].
ADVICE
ON CHARGES
On the 16th of October, 2014
Mr. Dereva Mzuri was robbed of his car at gun point, and assaulted by the
accused breaking his ribs by kicking him continuously. The most appropriate
charge for this scenario is robbery with violence. This is because all the
ingredients of this offense are present. These are:
i.
Stealing the Nissan Sunny Saloon Car
Reg. No. KBC 145Z;
ii.
armed with dangerous weapons, in this
case pistols;
iii.
in the company of one or more persons;
iv.
beat or strike immediately before, after
or during the robbery
Robbery with violence is the preferred
charge as it is possible for the court to charge the robbery in case violence
is not proved and vice versa. Under section 179 of the CPC, the trial court may
convict a person for an offence other than that for which he or she was
charged. In the case of Noor Abdullahi
Ibrahim v. Republic,[47]the
court stated “When a person is
charged with an offence consisting of several particulars, a combination of
some only of which constitutes a complete minor offence, and the combination is
proved but the remaining particulars are not proved, he may be convicted of the
minor offence although he was not charged with it.”
The second offence
would be gang rape contrary to section 10 of the Sexual Offences Act. The
reason for gang rape as opposed to rape is that there were three accused
persons who in turn had carnal knowledge of Mrs. Bibi Wake without her consent.
The
third offence is impersonation of a police officer contrary to s101 (1) of the
National Police Service Act which states that wearing attire that resembles the
uniform of a police officer without authority from the Inspector General is
unlawful.
Alternative charges have not been added
so as to avoid duplicity and overloaded charges. Also because, robbery with
violence is a capital offence with the death penalty and when one of the
charges is a capital offence then alternative charges should be avoided as
illustrated in Kashizhs v. Republic[48]
THE
KENYA POLICE
CHARGE
SHEET
POLICE CASE NO……………..
DATE TO COURT………………
COURT FILE NO………………..
O.B. NO……………
|
Christian names or first names
1. ROHO
2.
PWAGU
3.
MPENDA
|
Surname or Father’s Name
MBAYA
PWAGUZI
MAOVU
|
Identity
1234567
2452452
3434325
|
Sex
M
M
M
|
Nationality
KENYAN
KENYAN
KENYAN
|
Age
ADULT
ADULT
ADULT
|
Address
P.O.
BOX 2424
KIAMBU
P.O.
BOX 3456 KIAMBU
P.O.
BOX 765 KIAMBU
|
||||
|
CHARGE
COUNT
1
|
STATEMENT
OF OFFENCE
ROBBERY
WITH VIOLENCE CONTRARY TO SECTION 295 AS READ WITH SECTION 296 (2) OF THE
PENAL CODE.
|
|||||||||
|
PARTICULARS OF OFFENCE.
|
Roho Mbaya, Pwagu Pwaguzi and Mpenda Maovu.
On
the 16th day of October 2014, at around 7pm, in Muthaiga within Nairobi
County, while armed with pistols, robbed Mr. Dereva Mzuri, of a Nissan Sunny
Saloon Car Reg. No. KBC 145Z and at, or immediately before or after the time
of such robbery, used actual violence which caused grievous bodily to the
said Mr. Dereva Mzuri.
(FOR
OTHER COUNTS SEE ATTACHED SHEET)
|
|||||||||
|
If Accused Arrested
|
Date of arrest
|
Without/with Warrant
|
Date App. To Court
|
Bond or Bail And
Amount
|
Is Application for Summons to issue
|
|||||
|
|
|
|
|
|
|
|||||
|
Remanded or Adjourned
|
|
|||||||||
|
Complainant and Address
|
Republic of Kenya through Dereva
Mzuri and Bibi
Wake of P.O. Box 64646 Nairobi.
|
|||||||||
|
Witnesses
|
1.Dereva Mzuri
2.Bibi Wake
|
|||||||||
|
Sentence
Court and date
|
................................................................................................
CHIEF MAGISTRATE’S COURT NAIROBI.................. If fine paid......................
|
|||||||||
ANNEXTURE
1: OTHER COUNTS
|
CHARGE
COUNT 2
|
STATEMENT
OF OFFENCE
GANG
RAPE CONTRARY TO SECTION 3 AS READ WITH SECTION 10 OF THE SEXUAL OFFENCES
ACT.
|
|
PARTICULARS OF OFFENCE
|
Roho Mbaya, Pwagu Pwaguzi and Mpenda Maovu
On the 16th
day of October 2014 after 7pm, at a coffee plantation in Kiambu County, in
the company of each other had carnal knowledge of Mrs. Bibi Wake without her
consent.
|
|
CHARGE
COUNT 3
|
STATEMENT
OF OFFENCE
IMPERSONATION OF A POLICE OFFICER CONTRARY
TO SECTION 101 (1) OF THE NATIONAL POLICE SERVICE ACT
|
|
PARTICULARS OF OFFENCE
|
Roho Mbaya, Pwagu Pwaguzi and Mpenda Maovu
On the 16th
day of October 2014 at around 7pm, in Kiambu County, without lawful authority
wore uniforms resembling that of a police officer
|
OFFICER
IN CHARGE …………
POLICE
STATION ……………..
[1] Gouriet V Union of post
office workers (1978) AC 435 at 477.
[3]
Sec Riddlesbarger, Supra,
note.
[4]
Supra, note 1.
[5]
(1978) KLR 1978.
[6] Criminal
Appeal No. 925 of 1979, High Court, Nairobi (unreported).
[7] Art.157(6)(a) of Kenya
constitution
[8] Apollo Mboya on August 13th
2013
[10] Article 157(6) of the Constitution, 2010 as read with
Section 89 of The Criminal Procedure Code.
[11] See also Florence Dorothy Kibera and
another v DPP and 4 others (2013) eKLR
[12] Essentials of Criminal Procedure
in Kenya, Patrick Kiage, 2010 pg 53 Law
Africa Publishing, Nairobi.
[13] ibid pg. 55.
[14]
Patrick Kiage‘Essentials of Criminal Procedure in Kenya,’ 2010 Law
Africa Publishing, Nairobi
[15] Douglas B. (1964) Criminal
Procedure in Uganda Kenya (Law in Africa) (No, 13)
[18] Section 136 of the Criminal
Procedure Code
[19] (1982) KLR 320
[20]Patrick Kiage (2010) Essentials
of Criminal Procedure in Kenya pg 73
[21] Section 135 (1) of the Criminal
Procedure Code
[22] Douglas B.(1964) Criminal
Procedure in Uganda Kenya(Law in Africa)(No 13) pp.34
[24] [1990] KLR 290
[25] Section 137(b)(i) of the CPC.
[26] [1955] EACA 484.
[27] Patrick Kiage, Essentials of
Criminal Procedure in Kenya (Law Africa) pp 78- 79.
[28] Laban Koti V. Republic (1962)
E.A. at 439.
[29] (1983) K.L.R 340.
[30] Chapter 403 Laws of Kenya
[31] Chapter 63 Laws of Kenya
[32] (1960) EA 132
[33] (1980) KLR 95
[34] 1986 BLR 36 (HC)
[35]
1952 Cr.App.R 94
[37] Douglas B. (1964) Criminal
Procedure in Uganda Kenya (Law in Africa) (No, 13) pp 38
[38] [1990] KLR 188
[40] Sigilani V Republic [2004] 2KLR
480.
[41] Ibid.
[42] Fappyton Mutuku Ngui v Republic
eKLR Criminal Appeal 296 of 2010.
[43] Criminal Case no 73 of 2013
[45] Criminal Appeal no 27 of 2013
[47] Criminal Appeal No. 345 of 2009
[48]
[1954] 21 E.A.C.A. 389
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