Case Metadata |
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| Case Number: | Criminal Appeal 786 of 1982 |
|---|---|
| Parties: | Nashon Marenya v Republic |
| Date Delivered: | 25 Jan 1983 |
| Case Class: | Criminal |
| Court: | High Court at Nairobi (Milimani Law Courts) |
| Case Action: | Judgment |
| Judge(s): | John Henry Sydney Todd |
| Citation: | Nashon Marenya v Republic [1983] eKLR |
| Advocates: | MON Odero for the Appellant JM Bwonwonga, Senior State Counsel, for the Respondent |
| Case History: | (Appeal from the District Magistrate’s Court at Kibera) |
| Court Division: | Criminal |
| County: | Nairobi |
| Advocates: | MON Odero for the Appellant JM Bwonwonga, Senior State Counsel, for the Respondent |
| Case Summary: | Nashon Marenya v Republic High Court at Nairobi January 25, 1983 Todd J Criminal Appeal No 786 of 1982 (Appeal from the District Magistrate’s Court at Kibera) Criminal practice and procedure - charge – form of – defect in charge – charge of failing to comply with curfew restriction order under the Public Order Act (cap 56) section 9(1) - charge not stating by whom order issued - charge not referring to any particular order - accused convicted - whether charge proper - whether irregularity in charge occasioning failure of justice. The appellant was charged in a magistrate’s court with failing to comply with a curfew restriction order said to have been made under section 9(1) of the Public Order Act (cap 56), under which certain police officers are empowered to make curfew restriction orders. The charge, however, did not make any reference to any such particular order. As it turned out, it was the Provincial Commissioner and not a police officer who had issued a curfew order, so that the proper section under which to charge the appellant would have been section 8(1) of the Act. The appellant was nevertheless convicted and sentenced. He appealed to the High Court. Held: 1. A charge and its particulars ought to be clearly framed, so that the accused persons can know what they are charged with and proper references should be made in the charge otherwise a confusion may arise which may lead to a failure of justice. 2. The charge in this case should have stated specifically that the appellant was in violation of an order made by a police officer in charge of the police in a province or in charge of a police division as is stated in the section under which the charge was brought and a reference should have been made in the charge to the particular order. 3. It could not be said that the irregularities in the charge would not occasion a failure of justice. Appeal allowed. Cases No cases referred to. Statutes Public Order Act (cap 56) sections 8(1), 9(1) Advocates MON Odero for the Appellant JM Bwonwonga, Senior State Counsel, for the Respondent |
| History Advocates: | Both Parties Represented |
| History County: | Nairobi |
| 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 |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 786 OF 1982
NASHON MARENYA............................................APPELLANT
VERSUS
REPUBLIC..........................................................RESPONDENT
(Appeal from the District Magistrate’s Court at Kibera)
JUDGMENT
The appellant, Nashon Marenya, was charged before the trial magistrate in the District Magistrate’s Court at Kibera for failing to comply with a curfew restriction order said to have been made under section 9(1) of the Public Order Act (cap 56), which deals with such orders made by police officers in charge of police in provinces or police officers in charge of police divisions. The particulars of the charge do not mention this as this matter, I think, ought to have been mentioned and no mention or reference is made to this order, again, as I think, this ought to have been done. No mention of such matters, I think, can lead to confusion. I am informed that in fact no curfew restriction order was made by any police officer, though there was an order made by the Provincial Commissioner dated August 20, 1982, published in the official Gazette on August 27, 1982 and I am asked by State Counsel to confirm the conviction entered against the appellant, by substituting a charge under section 8(1) of the Public Order Act in place of section 9(1) which is similar in terms.
As I have said the charge as framed is confusing and it is vague, and that being so, I do not think it can be said that it would be free from doubt that these irregularities would not occasion a failure of justice. Charges and particulars should be clearly framed so that accused persons know what they are charged with and proper references should also be made, otherwise confusion may arise and if confusion can arise it cannot be said that failure of justice may or may not have occasioned.
I think in this case it would be fair in all the circumstances if the appeal was allowed and so I allow the appeal, quash the conviction and set aside the sentence imposed. If the fine has been paid then I order that the same be refunded to the appellant.
Dated and delivered At Nairobi this 25th day of January , 1983.
J.H TODD
JUDGE
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