Splitting hairs over drafting of charge sheet

By Wahome Thuku

Florence operated a small tailoring shop at Mariakani in Kilifi district. One night in July 1987, her shop was broken into and several items stolen. They included her sewing machine, clothing materials, a skirt and three shirts, all worth Sh7,400.

Several days later, the skirt stolen from the shop was recovered from Salim. It was positively identified by Florence.

On interrogation, Salim said a man called Wambua had sold it to him.

Wambua was arrested and interrogated. Police concluded that he had actually broken into the shop, stolen the skirt and sold it to Salim.

Wambua was arraigned before a court and charged under sections 306(a) and 279(b) of the Penal Code.

Section 306(a) provides for offence of breaking into business building and committing a crime. It attracts a sentence of seven years in jail upon conviction.

Section 279 (b) covers stealing anything worth more than Sh100 from a dwelling house and the penalty is 14 years in jail upon conviction.

The charge sheet drafted by the police stated that on the night of July 27 and 28, 1987, jointly with others not before court, he broke into and entered the "kiosk" of Florence and stole the items.

Wrong statement

These sections of the law do not provide for anything like "breaking into a kiosk".

So from the onset, the offence had been improperly stated.

The statement of the offence alleged that the kiosk was a dwelling place and not a shop or store or other business place.

Having been found in possession of the skirt, it was now for Wambua to explain how he had gotten it.

He explained that he found the skirt in a bush where he had gone to answer to a call of nature. He denied having sold it to Salim saying he had actually given it to him.

Whether he had given or sold it to him, the prosecution had proved that he was in possession of the skirt. The magistrate’s court believed the prosecution’s story and rejected his explanation. He was convicted and sentenced to seven years imprisonment and another 14 years imprisonment to run concurrently.

He appealed to the High Court in Mombasa. In June 1989, the judge delivered his verdict. What is your verdict?

Verdict

The High Court judge held that section 306(a) had nothing like breaking into a kiosk. But he took judicial notice of the fact that in Kenya a kiosk is actually a place of business. So he rejected assertion in the statement of offence Wambua had broken into a dwelling house.

The judge said the responsibility of drafting correct charges lay in the hands of the prosecution and not the court. He noted the police in this case should have chosen the language used in the penal provision to frame the charge.

But the judge held that the language to describe the premises would not, on its own, render the defect in the charge incurable.

Wambua had understood the charge and put up his defence against it and hence he was not prejudiced.

The court ruled that he had been properly convicted but the conviction should have only been under Section 306(a) and not on both sections. The court set aside the 14-year sentence meted under section 279 (b) leaving the seven years sentence.