Benard Kipkorir Ngeno v Republic

High Court, at Kericho

May 3, 2002

Ondeyo J

Criminal Appeal No 59 of 2001

(Appeal fromthe judgment of the Resident Magsitrate’s Court at Sotik, D Chepkwony Esq, in Criminal Case No 1572 of 2001 dated 7th November 2001)

Criminal Law – defilement – defilement of a girl under the age of 14 years contrary to the Penal Code (cap 63) section 145(1) – how offence charged – charge failing to state that the act of carnal knowledge was “unlawful”– whether such charge fails to disclose an offence and is fatally defective.

Criminal Practice and Procedure – retrial–– circumstances in which retrial may be ordered – where there is a defect in the proceedings – retrial not ordered where there was a fatally defective charge which could not form a basis for proceedings.

The appellant was convicted on his own plea of guilty to the offence of defilement of a girl contrary to section 145(1) of the Penal Code (cap 63) and he was sentenced to imprisonment for ten years. The particulars of the charge stated that at the material time and place, he “had carnal knowledge of [the complainant], a girl under the age of fourteen years”. In his appeal, the appellant stated that the trial magistrate had erred in failing to appreciate that the charge and its particulars did not disclose an offence in law and that the charge was fatally detective.

Held:

1. Section 145(1) of the Penal Code (cap 63) provided that a person who “unlawfully and carnally knows any girl under the age of fourteen years is guilty of a felony…”. The section was clear that the offence created by it is committed if the act of carnal knowledge of a girl under the age of fourteen is unlawful.

2. It is possible for a man to have lawful carnal knowledge of a girl under the age of fourteen years and that is why there is a proviso to that section. Under that proviso, such an act is lawful if:

a) The girl, though aged below fourteen years, is the wife of the accused at the material time,
b) It appears to the court that the accused person believed or had reasonable cause to believe the girl to be or over fourteen years.

3. A charge under section 145(1) of the Penal Code must in its particulars include the word “unlawful”. Failure to state in the particulars that the carnal knowledge was unlawful renders the charge fatally defective.

4. The charge in this case did not allege that the carnal knowledge was unlawful. The charge did not therefore disclose any offence and the appellant was wrongly convicted. His conviction would be quashed and the sentence set aside.

5. A retrial can only be ordered if the proceedings themselves are defective. In the present case, there was no charge before the court which could have formed the basis of the proceedings. A retrial would enable the prosecution to amend the charge and that would subject the appellant to double jeopardy.

Appeal allowed, appellant ordered released.

Cases

Achoki, Daniel Nyareru v R Criminal Appeal No 6 of 2000

Statutes

Penal Code (cap 63) section 139, 141, 145(1)

Advocates

Mr Onderi for the Republic