High Court at Nairobi (Milimani Law Courts)
Samuel Mutinda Kasyoka v Republic  eKLR
Samuel Mutinda Kasyoka v Republic
High Court, at Nairobi June 20, 2003
Criminal Appeal No 465 of 1999
(From original conviction and sentence in Criminal Case No 1143 of 1999 of
the Chief Magistrate’s Court at Nairobi)
Criminal Practice and Procedure – charge–– duplicity of charge – where the charge sheet charges the accused person of having dishonestly– “received or retained” a cheque knowing or having reason to believe it to have been stolen – whether the charge as drafted is bad for duplicity – Penal Code (cap 63) section 322 (2).
The appellant had been convicted of among other offences, handling stolen property contrary to section 322(2) of the Penal Code (cap 63). The charge sheet had been framed as follows, “on the 3rd May 1997 at Barclays Bank of Kenya, Queensway Branch Nairobi, jointly with others not before the Court, otherwise than in the course of stealing, dishonestly received or retained a Banque Indosuez Cheque…..” The appellant appealed on the grounds that the charge as framed was bad for duplicity due to the use of the words “received or retained.” The state argued that the fact that a charge sheet was defective was not necessarily fatal to a conviction or charge, the real test being whether the accused was able to understand the offence he faced.
1. Considering the nature of the offence with which the appellant was charged, what the learned trial magistrate stated was not sufficient to identify which offence the appellant had been convicted of.
2. The appellant was convicted on a duplex charge and no one can state for sure which of the two offences he was committed. Such conviction should not be allowed to stand.
Appeal allowed, conviction quashed sentence set aside.
1. Mahero, Dickson Muchino v Republic Criminal Appeal No 53 of 2002
2. Mwaniki, David Ngugi v Republic Criminal Appeal No 68 of 2001
3. Bakari, Hamisi v Republic Criminal Appeal No 217 of 1986
4. Cherere so/ Gukuli v R (1955) 22 EACA 478
Mitchell, SG (1976) Archbold Criminal Pleading Evidence and Practice
London: Sweet & Maxwell Ltd 39th Edn p883
1. Penal Code (cap 63) sections 275, 313, 322(2)
2. Traffic Act (cap 403) section 46
3. Criminal Procedure Code (cap 75) sections 134, 188
Mr Kilukumi for the Appellant.
Mr Monda for the State.