|Criminal Appeal 233 of 2010
|MANGALE MANONGO v REPUBLIC
|11 Apr 2011
|High Court at Mombasa
|Maureen Akinyi Odero
|MANGALE MANONGO v REPUBLIC  eKLR
|From Original Conviction and Sentence in Criminal Case No. 254 of 2009 of the Principal Magistrate’s Court at Kwale: A.M. Obura (Mrs.) – R.M.)
|History Docket No:
|Criminal Case No. 254 of 2009
|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 HIGH COURT OF KENYA
CRIMINAL APPEAL NO. 233 OF 2010
The Appellant entered a plea of ‘not guilty’ to the charge and his trial commenced before HON. MRS. ANN OBURA, Resident Magistrate on 23rd July 2009. The complainant a 17 year old girl told the court that in September 2008 she left her home and got married to the Appellant. She lived with the Appellant for a period of six (6) months during which time they engaged in sexual intercourse on a regular basis. The complainant’s parents reported the matter to the local chief whereupon both the complainant and her ‘husband’ the Appellant were arrested and placed in cells. PW4 STANLEY CHEPKIRWA, a clinical officer attached to Diani Health Centre carried out a medical examination on the complainant on 11th February 2009. He found her to be two months pregnant. PW4 filled and signed the P3 form which he produces in court as an exhibit Pexb1. The Appellant was then charged in court.
At the close of the prosecution case the Appellant was found to have a case to answer and was placed on his defence. He exercised his discretion under S. 211 of the Criminal Procedure Code and elected to keep silent and not to profer any defence. On 15th April 2010 the learned trial magistrate delivered her judgement in which she convicted the Appellant of the offence of Defilement and thereafter sentenced him to life imprisonment. It is against this conviction and sentence that the Appellant now appeals.
The charge sheet must include both the offence as created and the penalty provided for upon conviction. Thus the charge as properly framed ought to have read “Defilement ….. contrary to S. 8(1) as read with S. 8(4) Sexual Offences Act.” Failure to include S. 8(1) renders the charge sheet defective as no offence is disclosed. This is a defect which is fatal and cannot be rectified by S. 382 of the Criminal Procedure Code. The subsequent trial conviction and sentence of the Appellant, being premised on a defective charge are null and void and cannot stand. For this reason alone, this appeal succeeds. The Appellant’s conviction is quashed and his sentence of life imprisonment is also set aside. I have considered the question of whether a retrial would be appropriate. In my view the evidence adduced was weak and notwithstanding the defective charge sheet, the conviction rendered was still unsafe. As such I decline to order a retrial in this matter. The Appellant is to be set at liberty forthwith unless he is otherwise lawfully held.