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Court of AppealDismissedCriminal Appeal 342 of 2008

MBO v Republic

Court of Appeal
16 April 2010
RORSC OmoloPWPN WakiAVARM Visram
4,472 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that when a serious charge fails, the same evidence can still convict an accused of a lesser related offence.

What this practically means

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Executive summary

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The appellant, a 63-year-old grandfather, was convicted by a Nakuru Senior Resident Magistrate on three counts of defilement under section 145(1) of the Penal Code and sentenced to 20 years' imprisonment on each count, running consecutively (60 years total). On first appeal, Koome, J agreed the main counts were incurably defective for omitting the word 'unlawful', quashed those convictions, but re-examined the evidence, convicted on the alternative counts of indecent assault under section 144(1) of the Penal Code, and sentenced the appellant to 10 years' imprisonment on each count, concurrent. On this second and final appeal, counsel argued that the evidence supporting the quashed main counts dissipated with them and could not found the alternative convictions, and that 'buttocks' were not private parts. The Court of Appeal dismissed the appeal. It held that where a main charge fails, the evidence does not 'evaporate into thin air' and may be examined to prove a minor and cognate offence, as section 179 of the Criminal Procedure Code allows. It further held that buttocks were private enough to attract indecent assault, a view reinforced by the Sexual Offences Act, 2006. On sentence, the court held that severity was a matter of fact outside its jurisdiction, but the legal sentence under section 144(1) as amended must include hard labour; it therefore dismissed the appeal and enhanced the sentence to include hard labour. The High Court's decision was otherwise affirmed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the evidence on record in a sexual offence case could be examined to prove an alternative charge where the main charge had not been proved.
  2. 2.Whether the sentencing of an accused person convicted of the charge of indecent assault to 10 years imprisonment only was legal.

Key legal issues

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01

Whether evidence on a quashed main charge can support an alternative charge

Holding

Yes; the evidence does not evaporate and may be examined to prove a minor and cognate offence such as indecent assault, per section 179 CPC.

Reasoning

Charging in the alternative is a matter of abundant caution. When the main charge fails, whether from defect or insufficiency of evidence, the same evidence remains on record and may sustain conviction on a lesser cognate offence if proved beyond reasonable doubt. Section 179 CPC expressly authorises conviction on an alternative or lesser offence.

p. 6
02

Whether 'buttocks' constitute private parts for indecent assault

Holding

Yes; buttocks are private enough to attract indecent assault if intentionally touched or exposed, and the Sexual Offences Act confirms this by including the anus in genital organs.

Reasoning

The court adopted the Gitau definition of indecent assault and held the law must keep apace with society. Even without the Sexual Offences Act's clarification, buttocks were private parts in 2005; the alternative counts referred to 'private parts' with 'buttocks' only in parenthesis, and there was ample evidence of touching.

p. 7
03

Legality of the 10-year sentence for indecent assault

Holding

The sentence was legal in term but defective in omitting hard labour, which section 144(1) of the Penal Code (as amended by Act 5 of 2003) requires; the court corrected it.

Reasoning

Severity of sentence is a matter of fact not within the Court of Appeal's jurisdiction under section 361(1)(a); legality is reviewable under section 361(1)(b). The statutory sentence where imprisonment is imposed must include hard labour, and its omission was corrected on appeal.

p. 8

Legal principles established

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  • Where the main charge is not proved, the evidence on record may be examined to support a minor and cognate offence under section 179 of the Criminal Procedure Code.
  • A defect in a charge does not invalidate a conviction unless it occasioned a failure of justice, per section 382 of the Criminal Procedure Code.
  • Buttocks are private parts capable of grounding indecent assault where intentionally touched or exposed.
  • Severity of sentence is a matter of fact outside the Court of Appeal's jurisdiction on a second appeal; only legality of sentence is reviewable.

Court orders

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  1. 1.Appeal dismissed.
  2. 2.The appellant shall serve the sentence imposed by the superior court together with hard labour.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority
PW
majority
AV
majority
On appeal from
High Court of Kenya at Nakuru
HCCRA No 284 of 2006
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second and final appeal on matters of law)

Relief refused

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Quashing of the alternative-count convictions on the ground that evidence on the quashed main counts could not found them

Evidence does not evaporate when the main charge fails; it may support a minor and cognate offence under section 179 of the Criminal Procedure Code.

p. 6

Setting aside convictions on the ground that 'buttocks' are not private parts

Buttocks of a woman are private enough to attract indecent assault if intentionally touched or exposed.

p. 2

Costs

No costs order made in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

If the main charge is not proved, either because it is defective or because the evidence on record does not support any element of the offence, the evidence does not evaporate into thin air!
p. 6Alternative charges - survival of evidence
In our view, it is not in all cases in which a defect detected in the charge on appeal will render a conviction invalid. Section 382 of the Criminal Procedure Code, is meant to cure such irregularities where prejudice to the appellant is not discernible.
p. 6Defective charges - section 382 curative provision
It is our view, even without this new development, that the buttocks of a woman were private enough to attract the charge of indecent assault if they were intentionally touched or exposed.
p. 7Indecent assault - private parts
In the result this appeal is dismissed. The appellant shall serve the sentence imposed by the superior court together with hard labour.
p. 8Final orders - dismissal and enhancement of sentence

Issues in the judgment

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minor

Headnote cites JMA v Republic as (2010) 1 KLR (GBV) 12 while the body cites it as [2009] eKLR (Criminal Appeal No 348/2007) with a decision date of November 6, 2009.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "MBO v Republic", Case Analysis (2010). Criminal Appeal 342 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/468/eng@2010-04-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.