LAND – compulsory acquisition – where the land that was compulsorily acquired was private land and not subject to acquisition – plaintiff had documents of title – effect of – validity of order

[Ruling] Criminal practice and procedure-murder-where the accused persons were charged with the offence of murder-whether the evidence adduced at trial was sufficient to secure a conviction-whether the accused persons were entitled to an acquittal-Criminal Procedure Code section 306

Medardo v Republic

High Court, at Malindi October 13, 2004

Ouko J

Criminal Appeal No 73 of 2004

(From original conviction and sentence in Criminal Case No 1260 of 2004)

Criminal Practice and Procedure – withdrawal of case – procedure in withdrawal of a case – who may withdraw a case – matters the court should be satisfied with before it can allow a withdrawal - whether a mother can withdraw a case in which her child is the complainant and victim of a felony - Criminal Procedure Code (Cap. 75) section 204.

Criminal Practice and Procedure – reconciliation and settlement – duty of the court to facilitate reconciliation among parties in criminal cases – nature of cases in which reconciliation and settlement may be promoted – whether reconciliation may be promoted where the offence is aggravated or is a felony - Criminal Procedure Code (Cap. 75) section 176.

Children – offences against children – withdrawal of a case where a child is a complainant - whether a mother can withdraw a case in which her child is the complainant and victim of a felony – whether the Children Court would be the proper court to adjudicate a case where an adult is charged with an offence committed against a child –Children Act, 2001 part VI

Criminal Practice and Procedure – charge – defective charge – issue of defective charge raised in an appellate court – court to consider whether the defect or irregularity occasioned a failure of justice.

On 23rd August, 2004, the respondent was charged in the subordinate court with the offence of having carnal knowledge of a person against the order of nature contrary to section 162(A) of the Penal Code (cap 63) and an alternative charge of indecent assault. The victim of the offence was a child of tender years and the charge sheet showed that J.O. C/o Rainbow Rescue Centre was the complainant.

In the afternoon of the same day, the prosecution informed the court that both the “complainant” and his father did not wish to proceed with the case. The child victim’s mother stated on oath that they had pardoned the respondent. The trial court then proceeded to acquit the respondent apparently under section 204 of the Criminal Procedure Code (Cap. 75).

The Republic brought an appeal against the decision of the subordinate court. State Counsel submitted that the trial court had misdirected itself in acquitting the respondent on the basis of an application to withdraw brought by a person other than the complainant. Counsel further submitted that since the matter involved a child of tender years, the case ought to have been dealt with by the Children’s Court under the Children Act.

The respondent’s advocate opposed the appeal. He argued that the case fell outside the jurisdiction of the Children’s Court and that the trial court must have been satisfied that there were sufficient grounds for allowing the withdrawal of charges. He also urged the court to find that the charges against the respondent were defective.

Held:

1. Under section 204 of the Criminal Procedure Code (Cap 75), if at any time before the final order is passed in a case a complainant satisfies the court that there are sufficient grounds for permitting him to withdraw his complaint, the court may permit him to withdraw it and shall thereupon acquit the accused.

2. Section 204 contemplates that first, it is the complainant who can withdraw a case and secondly, the court has to be satisfied that there are sufficient grounds for permitting the withdrawal. The Court retains a discretion to allow the application for withdrawal but once it has exercised that discretion and allowed the withdrawal it is bound to acquit the accused person.

3. A complainant, according to section 59 of the Criminal Law (Amendment) Act No 5 of 2003 is a person who lodges a complaint with the police or any other lawful authority. (Obiter) There is no age limit prescribed for a person to qualify to be a complainant. However, section 124 of the Evidence Act (Cap 80) and section 19 of the Oaths and Statutory Declarations Act (Cap 15) makes provisions on how to treat the evidence of children of tender years. Where a child is to withdraw a case, the Court would be expected to test the intelligence of the child through a voire dire examination before deciding whether or not to subject him to the oath.

4. The child was the right complainant. Although his mother had parental responsibility to him under the Children Act, the responsibilities enumerated in the Act do not encompass the withdrawal of criminal charges against those alleged to have violated the child’s rights.

5. The trial court was not given the reasons for the withdrawal so as to enable it to exercise its discretion under section 204.

6. Generally, under section 176 of the Criminal Procedure Code, the Courts are expected to encourage and facilitate amicable settlement by way of reconciliation of parties in certain criminal cases, such as in the case of common assault or in any case of a personal or private nature. However, Courts will not facilitate reconciliation where the offence, although of a personal or private nature, is aggravated in degree or where the offence amounts to a felony.

7. The offence with which the respondent was charged in the lower Court was expressly declared under section 162(a) of the Penal Code as a felony. Therefore, this was not a case where the Court was required to promote reconciliation.

8. In particular in criminal cases, the jurisdiction of the Children Court is limited to cases where either the child is charged with a criminal offence or where any person is accused with an offence under the Children Act. The assertion that this case should have been adjudicated under the Children Act was therefore not correct.

9. If the charge was defective, such irregularity could only be reversed or altered on appeal if it had occasioned a failure of justice. It was not shown that a failure of justice was occasioned to the respondent.

Appeal allowed, acquittal of the respondent set aside and case ordered to be tried afresh before any court of competent jurisdiction.

Cases

Johnson Muiruri v Republic [1983] KLR 445

Statutes

1. Criminal Procedure Code (cap 75) sections 176, 204, 348A

2. Penal Code (cap 63) section 162(a)

3. Children Act, 2001 (No 8 of 2001) Part VI

4. Criminal Law (Amendment) Act, No 5 of 2003 section 59

5. Evidence Act (cap 80) section 124

6. Oaths and Statutory Declarations Act (cap 15) section 19

Advocates

Mr Ogeti for the Republic.

Mr Ole Kina for the Respondent.

Criminal practice and procedure-murder-the accused was charged with the offence of murder-whether the prosecution adduced sound evidence to found a conviction-where the evidence of identification was by a single witness-factors considered by court when relying on such evidence-whether the accused was guilty of the offence-Penal Code section 203, 204