On the night of 10th October, 2015, Bwana and Bibi were resting at their Pepo Lane home in Zuri village. At about 9 p.m. they heard their dogs barking and shortly thereafter Machozi the watchman was at the front door knocking frantically. Bwana opened the door and two men wielding guns ordered them including Machozi to lie down. The armed men proceeded to tie them and then removed their gold watches, wedding rings, Bibi's diamond necklace and earrings. They stuffed the valuables into a bag. They then picked two Iphones, two Ipads and two laptop computers and packed them into the same bag.
Meanwhile Dhahabu, Machozi's wife arrived and headed for the main house to find out why the gate was wide open. The two gunmen on finding out that she was the watchman's wife requested her to get them drinking water. They followed her to their (Watchman's) quarters, raped her and left. Still in shock Dhahabu went to the main house where she managed to untie her husband, Bwana and Bibi.
Bwana and Bibi reported the matter to Mateso Bila Chuki Police Station. Inspector Kaa Chonjo was assigned the investigations. Meanwhile, two gentlemen Supu and Bora arrived at the police station the following day hurling insults at each other. It turned out that Bora had sold an IPad and jewelry to Supu and Supu's complaint was that Bora had failed to avail the proper documentation for the IPad and the jewelry.
Bora offered to take Kaa Chonjo to the place where he had bought the IPad and jewelry that he had sold to Supu. They proceeded to a house in Jiji Jinga belonging to Jicho and Pevu. They found the two men, Jicho and Pevu. The two were showing some watches and laptops to two other men who melted away as soon as they saw kaa Chonjo. Jicho and Pevu also tried to get away but were restrained by Bora and the chief Inspector. As Jicho and Pevu could not produce documentation with respect to the goods, Kaa Chonjo ordered them to carry all the items to the police station. He then called Bwana and Bibi who came and identified the two Ipads and two watches as those that had been stolen from them. They both said they had been too terrified to look directly at the gunmen during the attack but were convinced that they were of the same build as Jicho and Pevu.
Kaa Chonjo would like to prefer charges.
(a)Advise him on which offences and against whom they should be preferred. (6 marks)
The facts state Jicho and Pevu forcefully entered the premises at 9m which is at night. As such the offence of breaking into a house at night is known as Burglary. Section 304 of the Penal Code states that any person who breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years. If the offence is committed at night it shall be called burglary and the offender is liable for three years.
Whilst in the house Jicho and Pevu were armed with guns. They tied the victims and robbed them of jewelry as well as an Ipad. They therefore committed robbery with violence. Section 295 and 296 of the Penal code states any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery. If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.
Whilst in the house a female victim arrived and Jicho and Pevu proceeded to rape her. They are therefore guilty of the offence of gang rape. Section 10 of the Sexual Offences Act states that any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.
(b)Draft the charges. (9 marks)
THE KENYA POLICE
CHARGE SHEET
O.B. NO………………….
POLICE CASE NO……………………….
DATE TO COURT…………………….….
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Christian names in full or names
1. Jicho
2. Pevu
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Surname or father’s name
Oyo
Aya
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Identity No
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Sex
Male
Male
Male
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Nationality
Kenyan
Kenyan
Kenyan
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Apparent age
Adult
Adult
Adult
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Address
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CHARGE
COUNT 1
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ROBBERY WITH VIOLENCE CONTRARY TO SECTION 295 and 296 OF THE PENAL CODE CHAPTER 63 OF THE LAWS OF KENYA
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PARTICULARS OF OFFENCE
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1. JICHO 2. PEVU
On 10th October 2015 at about 9pm Jicho and Pevu broke into Pepo Lane home in Zuri and while armed with a gun they robbed Bwana and Bibi of gold watches, necklaces, earrings and an I-pad.
(FOR OTHER COUNTS, SEE ATTACHED SHEET)
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If Accused Arrested
Remanded or Adjourned to
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Date of Arrest
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Without or With Warrant
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Date of Apprehension
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Bond or Bail & Amount
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Is Application for Summons to Issue
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Complainant and Address
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Bwana, Bibi, Dhahabu and Machozi
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Witness
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Sentence
Court and Date
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CHIEF MAGISTRATE’S COURT NAIROBI
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COURT FILE NO………………………...
For Officer In Charge Mateso Bila Chuki Police Stattion
ALTERNATIVE TO COUNT ONE
THEFT CONTRARY TO SECTION 268 AND 275 OF THE PENAL CODE CHAPTER 63 OF THE LAWS OF KENYA
PARTICULARS OF OFFENCE
1. JICHO 2. PEVU
On 10th October 2015, Jicho and Pevu stole gold watches, necklaces, earrings and wedding rings from Bwana and Bibi
COUNT TWO
BURGLARY CONTRARY TO SECTION 304 OF THE PENAL CODE
PARTICULARS OF OFFENCE
1. JICHO 2. PEVU
On 10th October 2015 at about 9pm without lawful intent Jicho and Pevu broke into the Lepo home in Zuri area. The house belonging to Bwana and Bibi..
COUNT THREE
GANG RAPE CONTRARY TO SECTION 10 OF THE SEXUAL OFFENCES ACT
PARTICULARS OF OFFENCE
3. JICHO AND PEVU
On 10th October 2015, Jicho and Pevu jointly and forcefully raped Dhahabu at Lepo home in Zuri area.
COUNT FOUR
RESTRICTED USE OF A FIREARM CONTRARY TO SECTION 34(1) OF THE FIREARMS ACT
PARTICULARS OF OFFENCCE
ON 10TH October 2015, Jicho and Pevu while armed with a gun stole necklaces, earrings, gold watches and an Ipad from Bwana and Bibi at Lepo home in Zuri
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