Case Metadata |
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Case Number: | Criminal Appeal 73 of 2004 |
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Parties: | Ceretta Medardo v Republic |
Date Delivered: | 13 Oct 2004 |
Case Class: | Criminal |
Court: | High Court at Malindi |
Case Action: | Judgment |
Judge(s): | William Ouko |
Citation: | Ceretta Medardo v Republic [2004] eKLR |
Advocates: | Mr Ogeti for the Republic. Mr Ole Kina for the Respondent. |
Case History: | (From original conviction and sentence in Criminal Case No 1260 of 2004) |
Court Division: | Criminal |
Parties Profile: | Individual v Government |
County: | Kilifi |
Advocates: | Mr Ogeti for the Republic. Mr Ole Kina for the Respondent. |
History Docket No: | Criminal Case 1260 of 2004 |
Case Summary: | 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. |
History Advocates: | Both Parties Represented |
Case Outcome: | Appeal allowed, acquittal of the respondent set aside and case ordered to be tried afresh before any court of competent jurisdiction |
Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
CRIMINAL APPEAL 73 OF 2004
(FROM ORIGINAL CONVICTION AND IN CRIMINAL CASE 1260 OF 2004)
CERETTA MEDARDO…………………………………….APPELLANT
VERSUS
REPUBLIC…………………………………...…………..RESPONDENT
JUDGEMENT
This is an appeal by the state under section 348 A of the Criminal Procedure Code.
The appeal raises points of law and is, therefore, in my view competent. On 23rd August, 2004, the respondent Ceretta Medardo was brought before the Senior Resident Magistrate, Malindi, in Criminal Case No 1260 of 2004 charged with having carnal knowledge of a person against the order of nature contrary to section 162 (A) of the Penal Code. In the alternative he was charged with indecent assault. It was alleged that on 23rd day of July, 2004 at Kibokoni estate, Malindi the respondent had carnal knowledge of JO against the order of nature.
Through an interpreter the charges were read to the respondent who denied them, he was granted bond.
On the same day at 2.30 pm, the prosecution informed the court that both the complainant and his father did not wish to proceed with the case against the respondent. A lady by the name LA was introduced as the mother of the complainant. After taking the oath she stated that
“..We have talked and I have agreed to pardon accused in the dock. I want the case to be withdrawn. I know I shall not be able to return the case in Court because I have pardoned him. I have not been forced into withdrawing the charge. It is my own volition.”
The subordinate court then proceeded to acquit the respondent under section 204 (although not indicated I presume) of the Criminal Procedure Code.
The appellant now appeals to this Court against the order of the subordinate Court. The appellant relies upon a Memorandum of Appeal with 5 grounds of appeal, which were argued together during the hearing. The gist of the grounds is that the subordinate Court misdirected itself in acquitting the respondent on the basis of an application to withdraw by a person other than the complainant under section 204 of the Criminal Procedure Code.
The appellant further argued that since the matter involved a child of tender years, the case ought to have been dealt with by the Children’s Court as it fell within the provisions of the Children Act.
On the other hand Mr Ole Kina, for the respondent argued that the matter fell outside the jurisdiction of the Children Act as the charges the respondent faced related to offences under the Penal Code. He argued further that the lower court must have been satisfied that there were sufficient ground for it to have granted the application for withdrawal of charges.
According to him it is in the interest and for the benefit of the child that the charges were withdrawn.
It was further argued that it was the Republic, on the child’s behalf that initiated the withdrawal.
Finally it was contended that the charges were defective. Mr Ole Kina urged that Court not remit the matter for retrial as the charges were not specific.
I have carefully considered the foregoing submissions.
The issue for determination is whether the subordinate court misdirected itself by allowing the criminal charges against the respondent to be withdrawn under section 204 of the Criminal Procedure Code.
Section 204 of the Criminal Procedure Code provides:
“If a complainant, at any time before the final order is passed in a case under this part, 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.”
This section contemplates two situations. First it is the complainant who can withdraw a case under the section.
Second – the court has to be satisfied that there are sufficient grounds for permitting such a withdrawal. The Court retains a discretion to allow the application. But once it has exercised that discretion and allowed the withdrawal it is bound to acquit the accused person. The application for withdrawal was made by the mother of the child whose rights are alleged to have been violated. Was LA, the mother qualified as a complainant to withdraw the charges?
A complainant, according to section 59 of the Criminal Law (Amendment) Act No 5 of 2003 is a person who lodges a complainant with the police or any other lawful authority. It has not been shown who lodged the complaint with the police. However, according to the charge sheet, JO c/o Rainbow Rescue Centre is shown as the complainant. It is him who was aggrieved and must have provided the details of the alleged offence on him to the police. There is no age limit prescribed for a person to qualify to be a complainant. However, there are legal provisions dealing with how to treat evidence of children of tender years. These are adequately provided for under section 124 of the Evidence Act and section 19 of the Oaths and Statutory Declaration Act. The procedure to be followed has been laid down by case law. For instance in the case of Johnson Muiruri v R (1983) KLR 445 to which Mr Ogoti for the applicant referred this Court, the Court is required, before receiving evidence of a child of tender years, to form an opinion, on a voire dire examination. This is to enable the Court to decide whether the evidence can be received on oath or unsworn. Again this is important as evidence of a child of tender years taken on oath requires no corroboration while on unsworn evidence of such a child must be corroborated. The present matter had not reached the point of receiving evidence. However, if the child was to withdraw, the Court would have been expected to test the intelligence of the child through a voire dire examination before deciding whether or not to subject him to the oath. I come to the conclusion that the child, JO, was the right complainant. Although the mother has 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.
It will also be remembered that although Mr Ogoti told the Court in his submissions that the child is ten (10) years old, there is nothing to this effect on record except in the alternative charge where the child is described as a boy below the age of 18 years.
The second issue is whether the Court was satisfied that sufficient ground existed for the withdrawal. The only thing the Court was told by the mother of the child, who I have ruled was not the complainant, was that
“We have talked and have agreed to pardon accused in the dock. I want the case withdrawn ....”
The reasons for withdrawal were not set out to enable the trial Court to exercise its discretion under section 204 of the Criminal Procedure Code. There were talks but the nature of these talks which culminating in the decision to withdraw the charges were not disclosed.
Generally speaking 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. The offence with which the respondent was charged in the lower Court is expressly declared under section 162 (a) of the Penal Code as a felony. In my view, therefore, this was not a case where the Court was required to promote reconciliation. Before I conclude, I wish to comment on two issues raised by both counsel.
Mr.Ogoti urged the Court to find that the case in question should have been adjudicated by the Children Court as it involved a child. This assertion is certainly not correct. Part VI of the Children Act creates Special Courts to deal with certain issues regarding children.
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 of an offence under the Children Act. In the present case the child is the victim. He is not the one charged with the offence in question. Neither is the respondent charged with any offence created by the Children Act.
The second matter was raised by Mr Ole Kina that the charges were defective, for the main charge is not specific and both the main and alternative charges are duplex.
Mr Ole Kina represented the respondent before the subordinate court when plea was taken and later that afternoon when the withdrawal was sought & granted. He had the opportunity to raise an objection at that early stage.
Secondly, if the charge was defective, such irregularity can only be reversed or altered on appeal if the irregularity has occasioned a failure of justice. As matters stand, it has not been shown that a failure of justice was occasioned to the respondent. But if the charges are defective, the trial Court has powers, at any stage of a trial before the close of the prosecution case to order for amendment.
For all these reasons, I would allow this appeal by setting aside the order and consequential acquittal of the respondent under section 204 of the Criminal Procedure Code.
The effect of this is that the matter will be tried afresh before any Court of competent jurisdiction. Orders accordingly.
Dated and delivered at Malindi this 13th day of October 2004.
W.OUKO
JUDGE
Dated and delivered in Court.
Mr.Ole Kina for Respondent.
Mr.Ogoti for applicant
C.C: Randu – Interpreter English/Italian.
W.Ouko
Judge
13.10.2004
Mr.Ole Kina
The accused may be arrested and charged. The accused is on bond. I pray that the accused be admitted to bond. The court to provide a date for him to present himself before the lower Court. The accused is an old man. He has been appearing all the time he was required to do so.
W.OUKO
JUDGE
Mr.Ogoti
I oppose the application. At this stage the accused has no charges against him. The court can only exercise that discretion where there is a definite charge.
W.Ouko
Judge
In Reply
The acquittal by the subordinate Court has been set aside, meaning that the proceedings have not been terminated. There will be no necessity in presenting afresh charge. It is a continuation of the earlier case.
W.Ouko
Judge
Court
The order of this Court is that the matter be heard a fresh. The respondent is already on bond, and his passport, I believe was deposited in Court. The respondent’s bond is extended until he presents himself before the subordinate Court on 18th October 2004 for further orders.
W. OUKO
JUDGE