Delayed in handing him to the police. Prosecuted for assault and unlawful confinement. Convicted of these offences as they used unreasonable and unnecessary force. Under section 35a person arrested by a private persons without a warrant should be handed over to the police without delay.
The police, depending on the circumstances, should rearrest him or set him free. Section 8 of the Chiefs Act cap empowers a chef and an assistant chief to arrest any person for the purpose of preventing them from committing a crime in their jurisdiction. Empowers them to arrest any person who commits a cognizable offence. In the eyes of the law chiefs and the assistant chiefs are police officers.
Mainly required for minor offences and misdemeanors less than 3 years. After lying a charge in court you seek his attendance in court as opposed to police arrest then the accused is taken to court. This procedure is mainly used by private prosecutors e. As an alternative to an arrest warrant, he prosecution can apply for summons to issue against the accused person. Under section 90 with respect to private prosecutions upon receiving a complaint fled by private prosecutors, the courts may either issue summons to accused or warrant to compel attendance in court.
The proviso to section 90 states that a warrant be issued unless a complaint is made by private prosecutor. Under section a warrant of arrest may be issued to a person served with a summons to appear in court. Section warrants of arrest are issued where the accused disobeys summons. Section — warrant s of arrest must be in written form signed by the magistrate and it must bear the seal of the court. It must briefly state the charge against the suspect and describe the suspects details so that the poison receiving the warrant knows the offence charged.
NB: A warrant of arrest is directed to a particular person ordering him to arrest the person in respect of whom it is issued and bring them to court. Not issues generally to the police, but a particular person is that they are accountable. Warrant of Arrest remains in force until either execution o cancellation by the courts is issued.
It was stated that any person or police officer to whom warrant is issued is bound to execute it like the court which issues the warrant, he is protected by judicial immunity. Section , the court issuing a warrant may direct security t be taken in respect of an offence other than murder, treason, rape in which case the officer such release such person in court if the warrant allows for the release of the person on bond.
The warrant of arrest may be directed to the following persons Police officers — usually to one particular officer or officer in charge or to all other officers in a particular division. To a land owner, manager and farmer of land. Warrant issued to such persons is to allow them to arrest any person who enters their land.
On arrest they should hand over the accused to the nearest police officer. By virtue of section the person effecting arrests should notify the substance of the warrant to the suspect and if he is required b y the suspect and show him the warrant. Section 22 imposes duty on an occupant of premises or any person in charge of premises to afford all reasonable facilities of arrest i.
The facilities should also be provide to such persons to enable them to search the premises. Where no reasonable facilities are allowed I. Only break in when they are not allowed entry. Section 22 2 women in occupation of premises who are not suspects and who by custom do not appear in public should be given reasonable facilities to withdraw Muslim Women.
Section 23 allows arresting persons to break out of the premises to liberate themselves. The CPC provide elaborate procedure where the arrest has to be effected outside the jurisdiction of court.
Section 10 — The warrant may be forwarded by part or otherwise to the magistrate within the local limits where the jurisdiction it I to be executed. The magistrate to whom the warrant is forwarded should. Endorsement is crucial within his jurisdiction.
It is his responsibility to cause it to be executed. Under section instead of the warrant being forwarded to the magistrate within whose jurisdiction local limits to which it is to be execution the issuing the court may direct it to a police officer to take it for endorsement by a magistrate within the local limits.
NB: the police officer may execute the warrant without the endorsement if there is reason to believe the delay will be occasioned by obtaining the endorsement.
Officer has to be executed certificate explaining the same. A person arrested outside the local jurisdiction of the issuing magistrate may be taken. Before the magistrate within the local limits of whose jurisdiction the arrest was made. Necessary to avoid holding the person for more than 24 hours.
Apart from the police, the court of law and private persons, other tribunals discharging functions of a judicial nature have powers to issue warrants of arrest. For example the Rent Tribunal, judicial commission of inquiry. Section 30 of the National Assembly powers and privileges Act, vest the powers on the members of the National Assembly to arrest.
Like arrests, the search of the premises of the suspect and seizure of the property of the suspect infringes on the fundamental rights and freedoms of the individuals and in particular the right to privacy. The enjoyment of the right to privacy of the freedom for the invasion of privacy should be weighed against the rest of the society at large in finding out wrongdoers and redressing crime.
The invasion of privacy of the individual in the interests of the society should be done properly within the law. Search warrants governed by section — of the CPC.
A search warrant is defined as an authority to search a place for evidence of a crime which is suspected or believed to have been committed or to make an arrest of a suspected criminal.
A search warrant authorizes the person to whom it is addressed to enter a place or premises described in the warrant. If the item is found, it should be siezed and taken to a court having jurisdiction. Note: Warrant described the premises to be searched and the item to be searched for. If the premises is not the right one it is an illegal search and the owner may commence proceedings on tortuous liability.
A police officer having reasonable suspicion that there is evidence in a certain place for the investigating of a crime, he may apply to the court for a search warrant authorizing him to search the place.
Under section of the CPC it is necessary that the be evidence of a reasonable suspicion which must be given on oath. The Police officer must show hat there is reasonable ground for suspicion and given by way of an affidavit sworn by the officer.
Under section of the CPC a se4arch warrant may be issued on any day including Sunday for urgent matters. A search may be conducted witch or without a search warrant.
Where the same is conducted with a search warrant under section of the CPC there is an obligation on the person in charge of a closed place or premises to allow ingress and egress in and from the premises to allow them to enter and t leave for searching. Failure to provide such allows the police officer to use force to enter or break out of the premises.
By virtue of section ,, , and of the CPC on warrant of arrest also applies to search warrants, i. Warrant should be in the hands of the magistrate or the judge issuing it and it must be signed;. If it is to be conducted outside the jurisdiction of the court it must be endorsed by the magistrate within the local limits of which the search is to be conducted.
May be executed without endorsement in courts where there is delay. The directions in the warrant must be strictly observed — articles, items not in the warranted should not be seized. Only what is mentioned unless they a r likely to produce additional evidence as to the identity of the items or they are relevant to the charge.
The seizure of irrelevant articles is legally unjustifiable and in most cases causes damage to the prosecutions case. Vivendi v R EA Appellant is convicted in district court of Bussaga of being in possession of property reasonably suspected if having being stolen. Failure to give a satisfactory account of possession.
Police was acting on information received. They searched the house and shop of the appellant looking for a camera and expensive sunglasses which they did not find.
Instead they found a tiny box and exposure between under the counter said to have been left by V 3 months ago. V admitted leaving expensive meter with the appellant but denied that the meter in question was the on deposited by him with the appellant. V called as prosecution witness and denied ownership of the meter found in the shop. He denied ever depositing the exposure with the appellant. No search warrant produced by police and the only evidence in the shop was the oral evidence of the police against him which was inadmissible under section 63 of the evidence ordinance.
It was held that it is possible to establish that a particular search was conducted under the authority of a warrant without proving contents of warrant. The evidence did not justify a reasonable suspicion that the exposure meter had been stolen. Circumstances where a search is conducted without a search warranted. Where a person who is being sought by the police to be arrested enters a place where the process of getting a s4earch warrant would give the fugitive a chance to escape, section 22 of the CPC allows the police to enter such a place and search for the person t be arrested even thought they do not have search warrant.
NB: The police should only carry out a search fro the person when they are in hot pursuit of the a person and they are afraid that he would disappear if they wait for a court to give them a search warrant. Section 26 of the CPC empowers the police to detain and search aircraft, vessels vehicles, and persons and if they have reason to suspect the same contains stolen property or property unlawfully obtained.
This person may be exercised by other persons with permission s from the commissioner of police e. In all these circumstances the suspicion must precede the process of stopping a person for a search. Suspicion arising from the stopping of the search renders the action of the police illegal under section 26 of the CPC.
Where section 26 discusses at length. Keityo v Uganda EA Koech v R EA Section 27 A search to a woman must be done by another woman. Under section 89n of the CPC criminal proceedings may be instituted in 2 ways:. By way of making a complaint;. Any person affected by the conduct of another may make a complaint to a magistrate having jurisdiction.
Under section 89 3 the complaint may either be oral or written. Oral — it should be reduced into writing by the magistrate. This helps illiterate people who cannot write an affidavit on oath. Thereafter the magistrate should sight the same. Under section 89 4 the magistrate upon receiving the complaint should draw up or cause to be drawn up a formal charge based n the information given by the complainant. Magistrate may refuse to admit the complaint or formal charge drawn up if the same does not disclose any offence, He must give reasons for refusing to admit a complaint.
These proceedings are in chambers and are not in open court. The process of commencing proceedings is not commonly used in private prosecutions. Otherwise a complaint is usually made at the police station. Police conduct preliminary investigations and then arrest accused person or make a complaint to magistrate then get a search warrant and then the arrest warrant.
Where the accused is arrested without a warrant the law requires that they are brought to court as soon as possible without delay. Under section89 the arresting officer may draw up the formal charge against the occupied and present him to the magistrate section 89 4. Where the formal charge is drawn by the police if it should be signed by the officer in charge of the police station.
Alternatively the accused may be presented to the court where the magistrate under section 89 4 may draw up and sign the same. Both circumstances under section 89 5 may decline to admit the charge if the charge does not disclose any offence. The court does not normally draw the charge. A charge is a complaint formally drawn up. A formal written accusation of an offence is drawn up by the magistrate or police officer and signed as required by law for use in a c criminal trial or preliminary proceedings committal proceedings.
A charge is an equivalent of pleadings in civil cases. It contains allegations against the other party. It is drawn up to inform the court of the offence allegedly committed by the person it is called upon to try. To inform the accused of the allegations against him so that he can prepare a defense. Mandatory requirement that a charge must be based on some known offence.
Under section 77 8 of the constitution, it is provided that no person should be convicted of an offence unless the offence is defined in written law. Each charge is based on known offence in written law. The charge should be in the prescribed form. Section of the CPC prescribes that it should contain 2 essential elements The statement of the offence.
The particulars of the offence. Look at the second schedule of the CPC pages — for the prescribed forms. The charge should describe the offence briefly and plainly and concisely. It should not contain any evidence. Technical terms should not be used. Because this is a document to be given to the accused who is a simple person who does not understand such terms. Therefore it should be in ordinary language for ordinary people to understand. The statement of the offence usually states the law and the procedure and the particular section of the law which have been allegedly offended.
The particulars of the offence should contain the date and the place where the offence was allegedly committed, the subject matter of the charge acts which make it an offence. The particulars should contain the identity of the complainant and accused, for example to whom the house burnt belonged to.
With respect to sections the requirement is that the charge should state the sections and subsections of the offences charged. Thee penal code or statute may create a number of offences in one section so sometimes the charge may state the wrong or non-existent section or subsection. The effect of such lapses would depend on whether the same occasion or a miscarriage of justice. If in the opinion of the appellate court no injustice was occasioned on the accuses by citing the wrong section, the conviction shall stand.
However where the court sees the citation of the wrong section causing a miscarriage of justice the trial would be declared a nullity. Avone v R EA Appellant was charged with three counts of obtaining credit by fraud or forgery and of impersonation.
The relevant sections of the penal code under which 2 of the counts were laid were misdescribed. The appellant was convicted on all 3 counts. He appealed on grounds that the conviction was based on a defective charge and that therefore the conviction was a nullity in law.
The High Court dismissed the appeal and found that the misdescription for he charge had not occasioned any prejudice on the appellant.
Similarly in Sabur v R EA the appellant was charged with committing a traffic offence contrary to section 39 1 instead of being charged under section 40 1 of the Traffic Ordinance of Section 39 1 of the said statute did not create the offence was not arrested by section 39 but by section He was tried and convicted. The appellant was tried and convicted He appealed against the conviction grounded on the defectiveness of the charge and that it should be dismissed. It was held that since the particulars of the offence were adequate to inform the appellant of the offence with which he was charged there had been no failure of justice and the defect was curable under the CPC section which provides that unless the defect in a charge occasions a failure of justice or prejudices an accused person an order for conviction based on the defective charge should not be quashed.
Where grave defects exist the court should declare the charge defective and improper. Particularly where the particulars of the charge do not disclose the offence. Uganda v Keneri Opidi EA The particulars of the offence should be clear in order to enable the accused person to know the offence he is charged with.
The charge should be such that it is easy for them to defend themselves. Clarity is a requirement. Musoke v Uganda EA It was held that the charge of robbery which stated that a complainant was robbed of household goods without stating the identification and particulars of the goods stolen, did not disclose the offence of robbery.
State that the goods were stolen so that the accused know what they stole. Kigecha Njuga v R EA The accuses while driving a disguised car was chased and arrested by police from a tip off by a n informer. He was charged with being armed by day with the intent to commit a felony contrary to section 1 d of the penal code. Its contents shall be the complaint and permission requesting for private prosecution. If the above is satisfied the court will then, at its own discretion draw or cause to be drawn a formal charge containing a statement of the offence s.
The Association who had been following the arrest and investigation may prosecute through private prosecution of the women associated with Pasta Mkombozi. The first issue is to establish that, the Association of Kangatala Residents has locus standi to initiate prosecution of the women associated with Pasta Mkombozi regarding the arrest and recoveries.
Furthermore, Article 22 2 d states that court proceedings under clause 1 may be instituted by an association acting in the interest of one or more of its members. THAT the applicant has been following the arrest and investigation of the case against the respondents. THAT passage of time will erode evidence and occasion a miscarriage of justice.
Dated at Nairobi This ………………………. Day Of …………………… …………………………….. THAT this matter be certified as urgent. THAT this Honourable Court be pleased to grant leave to the applicant herein to privately prosecute the respondent.
THAT if the prosecution is not commenced privately the respondent is likely to go unpunished. THAT a grave social evil is being allowed to flourish unchecked because of inaction by the relevant authorities. THAT the applicant believes that in the event that these orders are not granted, the applicant will be prejudiced and suffer great injustice. THAT it is in the best interest of justice that the orders be granted as prayed. This honorable has jurisdiction to hear and determine this application.
Dated At Nairobi This……………Day of………………………. THAT the respondents had been arrested and subsequently released without being charged of any offence. THAT despite my visits and insistent requests to the Director of Public Prosecutor to prosecute the said respondents, it has fell on deaf ears.
THAT it is for the best interest of the citizens of this country that the said respondents are prosecuted. The writ of habeas corpus consists of a mandatory order by the court or judge directed to any person who is alleged to have another person unlawfully in his custody, requiring him to have the body of such person before the court or judge immediately after receipt of the writ together with the day and cause of his being taken and detained, to undergo and receive all such things as the court may order.
There are various types of Habeas Corpus; a Habeas corpus ad subjiciendum — secures liberty b Habeas corpus ad testificandum — secures attendance of a prisoner in custody under civil process to give evidence before any court, tribunal, commission, etc.
In our case, the family is entitled to approach the court and seek an order of habeas corpus. The order sought will be the Habeas Corpus ad subjiciendum. It will be used to enforce fealty and accountability to the law by requiring Mfuataji Wima be set at liberty.
The Chamber Summons are supported by affidavit s. Because habeas corpus is a prerogative writ, it can only be entertained by the High Court. THAT this application be heard ex parte in the first instance in view of its urgency.
The cost of this application be provided for. On the 22nd March , the court ruled that Mfuataji Wima has no case to answer and acquitted him under section of the Criminal Procedure Code. After Mfuataji Wima left the court room on 22nd March , he was bundled into a vehicle registration No.
GK and the vehicle sped off. The family of Mfuataji Wima has sought the assistance of the Criminal Investigation Department to no avail. That the family of Mfuataji Wima is worried about the safety and the whereabouts of Mfuataji Wima and unless the writ of Habeas Corpus is granted, the family will continue to suffer for the life of their loved one.
That I am the lawfully wedded wife of Mfuataji Wima and the applicant in this cause. That my husband had been charged with possession of specified firearms without a licence permit or other lawful justification contrary to Section 89 of the Penal Code as read with Section 4 a of Firearms Act; possession of Narcotic drug contrary to Section 3 1 as read with Section 3 2 of the Narcotic and Psychotropic Substances Control Act; and Recruitment and facilitation of the recruitment of members to a terrorist organization contrary to Section 13 of the Prevention of Terrorism Act.
That on 22nd March the court ruled that Mfuataji Wima had no case to answer and acquitted him under section of the Criminal Procedure Code. That on the 22nd March , outside the court room, my husband was bundled into a car believed to be a government vehicle registration No.
GK and which sped off. That my husband has not been brought before court to answer to any other charges. That I am informed that my husband was taken to Karunda forest. That the family is worried about the life of Mfuataji Wima as it has been two months since the incident. That I believe that unless this court grants the writ of Habeas Corpus, the family is unlikely to be informed of the whereabouts of Mfuataji Wima.
That I swear this affidavit in support of the application that there be issued a writ of Habeas corpus ad subjiciendum for the production of Mfuataji Wima. All parties herein concerned, should be in attendance on the said date. This is a system where the court or the magistrate has a passive role of listening to what both parties hold and finally make a decision based on the same. In such a system, the court cannot invite itself and give any orders which a party had not prayed for.
In terms of requesting what one wants, the buck stops with the disputants. The court is normally tasked with the duty of achieving justice. Note carefully that the word here is justice and not truth.
The courts are presided by judicial officers who lack any angelic powers to know who is telling the truth. Justice is based on fairness and equity in the eyes of the law. NB: A warrant of arrest is directed to a particular person ordering him to arrest the person in respect of whom it is issued and bring them to court.
Warrant of Arrest remains in force until either execution o cancellation by the courts is issued. It was stated that any person or police officer to whom warrant is issued is bound to execute it like the court which issues the warrant, he is protected by judicial immunity. Section , the court issuing a warrant may direct security t be taken in respect of an offence other than murder, treason, rape in which case the officer such release such person in court if the warrant allows for the release of the person on bond.
Section 22 imposes duty on an occupant of premises or any person in charge of premises to afford all reasonable facilities of arrest i. The facilities should also be provide to such persons to enable them to search the premises. Where no reasonable facilities are allowed I. Only break in when they are not allowed entry. Section 22 2 women in occupation of premises who are not suspects and who by custom do not appear in public should be given reasonable facilities to withdraw Muslim Women.
The CPC provide elaborate procedure where the arrest has to be effected outside the jurisdiction of court. Section 10 — The warrant may be forwarded by part or otherwise to the magistrate within the local limits where the jurisdiction it I to be executed. The magistrate to whom the warrant is forwarded should. Endorsement is crucial within his jurisdiction. It is his responsibility to cause it to be executed.
Under section instead of the warrant being forwarded to the magistrate within whose jurisdiction local limits to which it is to be execution the issuing the court may direct it to a police officer to take it for endorsement by a magistrate within the local limits. NB: the police officer may execute the warrant without the endorsement if there is reason to believe the delay will be occasioned by obtaining the endorsement.
Officer has to be executed certificate explaining the same. A person arrested outside the local jurisdiction of the issuing magistrate may be taken. Before the magistrate within the local limits of whose jurisdiction the arrest was made. Necessary to avoid holding the person for more than 24 hours. Apart from the police, the court of law and private persons, other tribunals discharging functions of a judicial nature have powers to issue warrants of arrest.
For example the Rent Tribunal, judicial commission of inquiry. Section 30 of the National Assembly powers and privileges Act, vest the powers on the members of the National Assembly to arrest. Like arrests, the search of the premises of the suspect and seizure of the property of the suspect infringes on the fundamental rights and freedoms of the individuals and in particular the right to privacy.
The enjoyment of the right to privacy of the freedom for the invasion of privacy should be weighed against the rest of the society at large in finding out wrongdoers and redressing crime. The invasion of privacy of the individual in the interests of the society should be done properly within the law. A search warrant is defined as an authority to search a place for evidence of a crime which is suspected or believed to have been committed or to make an arrest of a suspected criminal.
A search warrant authorizes the person to whom it is addressed to enter a place or premises described in the warrant. If the item is found, it should be siezed and taken to a court having jurisdiction.
Note: Warrant described the premises to be searched and the item to be searched for. If the premises is not the right one it is an illegal search and the owner may commence proceedings on tortuous liability. A police officer having reasonable suspicion that there is evidence in a certain place for the investigating of a crime, he may apply to the court for a search warrant authorizing him to search the place.
Under section of the CPC it is necessary that the be evidence of a reasonable suspicion which must be given on oath. The Police officer must show hat there is reasonable ground for suspicion and given by way of an affidavit sworn by the officer. Under section of the CPC a se4arch warrant may be issued on any day including Sunday for urgent matters.
A search may be conducted witch or without a search warrant. Where the same is conducted with a search warrant under section of the CPC there is an obligation on the person in charge of a closed place or premises to allow ingress and egress in and from the premises to allow them to enter and t leave for searching.
Failure to provide such allows the police officer to use force to enter or break out of the premises. By virtue of section ,, , and of the CPC on warrant of arrest also applies to search warrants, i. The directions in the warrant must be strictly observed — articles, items not in the warranted should not be seized. Only what is mentioned unless they a r likely to produce additional evidence as to the identity of the items or they are relevant to the charge.
The seizure of irrelevant articles is legally unjustifiable and in most cases causes damage to the prosecutions case. Appellant is convicted in district court of Bussaga of being in possession of property reasonably suspected if having being stolen. Failure to give a satisfactory account of possession.
Police was acting on information received. They searched the house and shop of the appellant looking for a camera and expensive sunglasses which they did not find. Instead they found a tiny box and exposure between under the counter said to have been left by V 3 months ago.
V admitted leaving expensive meter with the appellant but denied that the meter in question was the on deposited by him with the appellant. V called as prosecution witness and denied ownership of the meter found in the shop. He denied ever depositing the exposure with the appellant. No search warrant produced by police and the only evidence in the shop was the oral evidence of the police against him which was inadmissible under section 63 of the evidence ordinance.
It was held that it is possible to establish that a particular search was conducted under the authority of a warrant without proving contents of warrant. Where a person who is being sought by the police to be arrested enters a place where the process of getting a s4earch warrant would give the fugitive a chance to escape, section 22 of the CPC allows the police to enter such a place and search for the person t be arrested even thought they do not have search warrant.
NB: The police should only carry out a search fro the person when they are in hot pursuit of the a person and they are afraid that he would disappear if they wait for a court to give them a search warrant.
Section 26 of the CPC empowers the police to detain and search aircraft, vessels vehicles, and persons and if they have reason to suspect the same contains stolen property or property unlawfully obtained. This person may be exercised by other persons with permission s from the commissioner of police e.
In all these circumstances the suspicion must precede the process of stopping a person for a search. Suspicion arising from the stopping of the search renders the action of the police illegal under section 26 of the CPC.
Any person affected by the conduct of another may make a complaint to a magistrate having jurisdiction. Oral — it should be reduced into writing by the magistrate. This helps illiterate people who cannot write an affidavit on oath.
Thereafter the magistrate should sight the same. Under section 89 4 the magistrate upon receiving the complaint should draw up or cause to be drawn up a formal charge based n the information given by the complainant. Magistrate may refuse to admit the complaint or formal charge drawn up if the same does not disclose any offence, He must give reasons for refusing to admit a complaint.
These proceedings are in chambers and are not in open court. The process of commencing proceedings is not commonly used in private prosecutions. Otherwise a complaint is usually made at the police station.
Police conduct preliminary investigations and then arrest accused person or make a complaint to magistrate then get a search warrant and then the arrest warrant. Where the accused is arrested without a warrant the law requires that they are brought to court as soon as possible without delay. Under section89 the arresting officer may draw up the formal charge against the occupied and present him to the magistrate section 89 4.
Where the formal charge is drawn by the police if it should be signed by the officer in charge of the police station.
Alternatively the accused may be presented to the court where the magistrate under section 89 4 may draw up and sign the same. Both circumstances under section 89 5 may decline to admit the charge if the charge does not disclose any offence. A charge is a complaint formally drawn up. A formal written accusation of an offence is drawn up by the magistrate or police officer and signed as required by law for use in a c criminal trial or preliminary proceedings committal proceedings.
A charge is an equivalent of pleadings in civil cases. It contains allegations against the other party. It is drawn up to inform the court of the offence allegedly committed by the person it is called upon to try. Under section 77 8 of the constitution, it is provided that no person should be convicted of an offence unless the offence is defined in written law.
Each charge is based on known offence in written law. The charge should be in the prescribed form. Section of the CPC prescribes that it should contain 2 essential elements The charge should describe the offence briefly and plainly and concisely.
It should not contain any evidence. Technical terms should not be used. Because this is a document to be given to the accused who is a simple person who does not understand such terms. Therefore it should be in ordinary language for ordinary people to understand. The statement of the offence usually states the law and the procedure and the particular section of the law which have been allegedly offended. The particulars of the offence should contain the date and the place where the offence was allegedly committed, the subject matter of the charge acts which make it an offence.
The particulars should contain the identity of the complainant and accused, for example to whom the house burnt belonged to.
With respect to sections the requirement is that the charge should state the sections and subsections of the offences charged. Thee penal code or statute may create a number of offences in one section so sometimes the charge may state the wrong or non-existent section or subsection.
The effect of such lapses would depend on whether the same occasion or a miscarriage of justice. If in the opinion of the appellate court no injustice was occasioned on the accuses by citing the wrong section, the conviction shall stand.
However where the court sees the citation of the wrong section causing a miscarriage of justice the trial would be declared a nullity. Appellant was charged with three counts of obtaining credit by fraud or forgery and of impersonation. The relevant sections of the penal code under which 2 of the counts were laid were misdescribed.
The appellant was convicted on all 3 counts. He appealed on grounds that the conviction was based on a defective charge and that therefore the conviction was a nullity in law.
The High Court dismissed the appeal and found that the misdescription for he charge had not occasioned any prejudice on the appellant. Similarly in Sabur v R EA the appellant was charged with committing a traffic offence contrary to section 39 1 instead of being charged under section 40 1 of the Traffic Ordinance of Section 39 1 of the said statute did not create the offence was not arrested by section 39 but by section He was tried and convicted.
The appellant was tried and convicted He appealed against the conviction grounded on the defectiveness of the charge and that it should be dismissed. It was held that since the particulars of the offence were adequate to inform the appellant of the offence with which he was charged there had been no failure of justice and the defect was curable under the CPC section which provides that unless the defect in a charge occasions a failure of justice or prejudices an accused person an order for conviction based on the defective charge should not be quashed.
Where grave defects exist the court should declare the charge defective and improper. Particularly where the particulars of the charge do not disclose the offence. The particulars of the offence should be clear in order to enable the accused person to know the offence he is charged with. The charge should be such that it is easy for them to defend themselves. Clarity is a requirement. It was held that the charge of robbery which stated that a complainant was robbed of household goods without stating the identification and particulars of the goods stolen, did not disclose the offence of robbery.
State that the goods were stolen so that the accused know what they stole. The accuses while driving a disguised car was chased and arrested by police from a tip off by a n informer. He was charged with being armed by day with the intent to commit a felony contrary to section 1 d of the penal code.
The felony that the accused was charged with was not stated. He was convicted and on appeal the High Court set aside the conviction on the basis that the intended felony ought to have been disclosed din the charge if there was doubt a to the intended felony, different felonies should have been stated in the alternative.
Nahashon Marenya v R Nairobi H. Criminal Appeal of Appellant had been charged with failing to comply with a curfew restriction order, contrary to section 1 of the public order Act. Particulars of the offence did not disclose the details of the curfew restriction order that the appellant had allegedly failed to comply with, when the curfew order started and ended.
It was held on appeal that the charge did not disclose an offence. The details were insufficient. They did not disclose enough details to assist the accused in his defense. Todd J said of the charges and particulars:. An error in the particulars is not necessarily fatal to the charge unless it has occasioned injustice on the appellant,. Sometimes the charge may contain no particulars at all or it may contain the wrong ingredients.
A charge would be incurably defective for lack of particulars. The accused ought to be discharged. Wander Reuben Kubanisi on the 29 th of January, at 8. The appellant was tried and convicted. On appeal the High Court found the charge barred for uncertainty as it did not disclose the felony alleged to have been committed.
A charge would also be incurably defective if it contains the wrong ingredients of the offence or if it omits an essential ingredient. Appellant was charged with moving maize without a permit contrary to section 24 of the Maize Marketing Ordinance. On appeal they found that the particulars of the charge did not conform to section 24 2 of the ordinance. The particulars do not refer to any such order. The charge should have stated that the maize was moved without a permit.
It was held that the charge was bared because it did not mention the order concerned. Shah v R. This case shows that in cases of stolen property, the charge will not be barred or defective if it omits to name the owner of the property.
Where an enactment constituting and offence states the offence to be the doing or the omission to do any one of any of the different acts in the alternative or the doing or the omission to do any act. In any one of the many different capacities or with anyone of the different intentions or any part of the offence in the alternative, the act, omissions, capacities or intentions stated in the alternative in the count charging the offence. It is a legal requirement that a charge should not suffer from duplicity.
Duplicity occurs where the charge or count charges the accused of having committed two or more separate offences, It is said to new duplex and barred for duplicity.
Duplicity occurs when a statute creates offences in the alternative, Section 86 of the Traffic Act illiterates for offences created in the alternative e. All these are stated in the alternative so that you cannot be charged of two or more but only one of the alternative.
A count charging the accused of causing death by driving the motor vehicle recklessly and at high speed is duplex. The charges should be expressed in the alternative:. The appellant was charged with the alternative counts of an offence i. The particulars of the charge o arson alleged that the appellant had set on fire two houses, one belonging to A and the other belonging to B The houses stood more than yards apart. He was charged with one count of murder and one count of arson.
Evidence showed that the appellant had attempted murder on 2 occasions. The question was whether there was duplicity.
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