Case Metadata |
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| Case Number: | Criminal Appeal 84 of 1988 |
|---|---|
| Parties: | John DallaNyadenga v Republic |
| Date Delivered: | 22 Jun 1989 |
| Case Class: | Criminal |
| Court: | Court of Appeal at Kisumu |
| Case Action: | Judgment |
| Judge(s): | Johnson Evan Gicheru, Richard Otieno Kwach, Joseph Raymond Otieno Masime |
| Citation: | Nyadenga v Republic[1989] eKLR |
| Case History: | (Appeal from a judgement of the High Court of Kenya at Kisumu, Omolo J, dated 25th September 1985 in High Court Criminal Appeal No 183 of 1987) |
| Court Division: | Criminal |
| History Docket No: | Criminal Appeal No 183 of 1987 |
| History Judges: | Riaga Samuel Cornelius Omolo |
| Case Summary: | Nyadenga v Republic Court of Appeal, at Kisumu June 22, 1989 Masime JA, Gicheru & Kwach Ag JJ A Criminal Appeal No 84 of 1988 Criminal law - preparation to commit a felony - Penal Code (cap 63) section 308(1) - ingredients of the offence - how offence charged – accused found in possession of panga and rungu - charge not stating whether the weapons were “dangerous or offensive” - whether charge disclosed an offence - whether conviction proper. Criminal Practice and Procedure - charge - form of charge - omission of an ingredient of the offence in the charge - whether such charge discloses an offence whether a conviction based on such charge can stand. The appellant was tried and convicted of the offence of preparation to commit a felony contrary to section 308(1) of the Penal Code (cap 63). He was alleged to have been found in possession of a panga and a rungu at night with intention to commit a felony. The particulary of the charge however did not specify whether the panga and rungu were dangerous or offensive weapons. Held: 1. An accused person commits the offence of preparation to commit a felony under section 308(1) of the Penal Code (cap 63) if he is found, first, to be armed with a dangerous offensive weapon, and secondly, in circumstances indicating that he was so armed with the intention of committing a felony. 2. These ingredients of the offence under section 308 (1) of the Penal Code must be specified. Any omission of any one of these ingredients will render the charge for such offence defective to the extent that it discloses no offence. 3. If such charge is not sufficiently amended, on appeal, a conviction thereon will be quashed. 4. The words “dangerous or offensive weapon” contemplates the weapon being used to cause peril or intended for or used in attack. 5. A panga and a rungu are not per se dangerous weapons but can be used to inflict injuries on people. The failure to indicate in the particulars of the offence that the panga and rungu were either dangerous or offensive weapons amounted to an omission of one of the ingredients of the offence. 6. The omission of that ingredient plus the failure to lead evidence to show that those weapons were either dangerous or offensive made the charge totally defective. The charge disclosed an offenec and the conviction arising from it could not stand. Appeal allowed. Cases Matu s/o Gichimu v Republic [1951] EACA 311 Statutes Penal Code (cap 63) section 308(1) |
| History County: | Kisumu |
| Case Outcome: | Appeal allowed. |
| 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 |
IN THE COURT OF APPEAL
AT KISUMU
(Coram: Masime JA,Gicheru & Kwach AG JJ A)
CRIMINAL APPEAL NO 84 OF 1988
BETWEEN
JOHN DALLA NYADENGA..................... APPELLANT
AND
REPUBLIC.............................................RESPONDENT
JUDGMENT
(Appeal from a judgement of the High Court of Kenya at Kisumu, Omolo J, dated 25th September 1985
in
High Court Criminal Appeal No 183 of 1987)
******************************
June 22, 1989, the following Judgment of the Court was delivered.
An accused person commits the offence of preparation to commit a felony contrary to section 308 (1) of the Penal Code if he is found “armed with any dangerous or offensive weapon in circumstance that indicate that he was so armed with intent to commit any felony. “Thus, an accused person must be found:
1. Armed with any dangerous or offensive weapon; and
2. In circumstances that indicate that he was so armed with intent to commit a felony.
These ingredients must be specified in the particulars of the offence under section 308(1). An omission of any one of these ingredients will render the charge for such offence defective to the extent that it discloses no offence. If such charge is not sufficiently amended, on appeal, a conviction thereon will be quashed – see the case of Matu s/o Gichumu V. Rex, (1951) 18 EACA 311 at page 316.
The particulars of the offence under section 308(1) of the Penal Code for which the Appellant, John Dalla Nyadenga, was charged in the Court of first instance read as follows:
“John Dalla Nyadenga: On the night of 8th January, 1987 at Kaidakwa estate in Siaya Township in Siaya District of the Nyanza province was found armed with a panga and a rungu with intent to commit a felony.”
These particulars made no reference to the panga and the rungu mentioned therein being dangerous or offensive weapons. Indeed, the proceedings in the Court of first instance made no intimation that these weapons were dangerous or offensive.
The words dangerous or offensive weapon contemplates the weapon being used to cause peril: or intended for or used in attack. It is not for nothing therefore that these words are used in section 308(1) of the Penal Code. Failure to indicate in the particulars of the offence set out above that the panga and the rungu were either dangerous or offensive weapons amounted to an omission of one of the two ingredients that constitute the offence under the section aforementioned. A panga and a rungu, as the first appellate Judge rightly pointed out, are not per se dangerous weapons but can be used to inflict injuries on people. The omission of the ingredient mentioned above together with the absence of evidence being led in the court of the first instance that these weapons were either dangerous or offensive made the charge against the appellant totally defective. That charge disclosed no offence. A conviction arising therefrom cannot stand.
Accordingly, we allow the appellant’s appeal, I quash his conviction and set aside the sentence of 10 years imprisonment with hard labour together with 3 strokes of corporal punishment. His police supervision order is also set aside. He is to be set at liberty forthwith unless held in custody for any other lawful cause.
That is the order of the court.
Dated and Delivered at Kisumu this 22nd day of June, 1989.
J.R.O. MASIME
................................
JUDGE OF APPEAL
J.E. GICHERU
................................
AG. JUDGE OF APPEAL
R.O. KWACH
................................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR
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