Jackson Kibet Ruto v Republic

(c) That the learned trial Magistrate erred in law and fact in considering extraneous issues in convicting the Appellant. (d) That the learned trial Magistrate erred in law and fact in convicting and sentencing the Appellant on the evidence which was at variance with the charge. (e) That the learned trial Magistrate erred in law and fact in awarding a sentence that was harsh and excessive in the circumstance. (f) That the learned trial Magistrate erred in law and sentencing the Appellant on a defective charge. fact in convicting and (g) That the learned trial Magistrate erred in law and fact in failing to consider the appellant's defence in it's entirety. (h) That the learned trial Magistrate erred in law and fact in failing to give judicious legal grounds for his findings. 6. The Respondent filed a cross appeal citing the following grounds; (a) That the learned trial Magistrate erred in law and fact in acquitting the respondent in the first charge against the weight of evidence. (b) That the learned trial Magistrate erred in law and fact in sentencing the accused person to three (3) years imprisonment a sentence which is at variance with the law. (c) That the learned trial Magistrate erred in law and fact in failing to consider the appellants evidence in its entity. (d) That the learned trial Magistrate erred in law and consideration judicial legal grounds in his findings. fact in failing to take into 7. A summary of the prosecution case is that PW1 a minor aged ten (10) years was outside her parent's house on 17th February, 2007 at 8.00am at [particulars withheld] when the appellant called her to his house. She went and he requested her to enter the house and directed her to the bedroom. She was asked to remove her clothes which she did and he defiled her. 8. She reported to her sister (PW3) and cousin (PW4) and was taken to the Kericho District Hospital the same day. The parents of the child (PW6 & PW7) were notified of the incident. 9. PW8 No. 35421 PC. Joseph Chebii arrested the appellant after being informed of the incident on 21st February, 2007. PW9 Yego Kirwa is the clinical officer who examined PW1 on 21 st February, 2007. He found evidence of penetration plus infection of an STD (EXB4). The appellant was examined on 9th March, 2007 and the tests for STD & HIV were both negative (EXB 3&6). 10. In cross-examination he said the STD in PW1 was detected on 27 th March, 2007 when she filled the P3 form. He further stated that the appellant was examined on 22nd February, 2007. 11. The appellant in his defence gave an unsworn statement and called one (1) witness. He denied the charge saying he reported on duty on 17 th February, 2006 at 5.00am as he was in shift A. He completed his shift at 10.00am arriving at his house at 10.10am. He changed his clothes and left. He arrived back on 18th February, 2006 at 7.00pm. He was informed of the defilement of

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a child on 19th February, 2006 and heard nothing more about it until 21 st February, 2006 when he was arrested. The tests done on him were negative yet those done on the child were positive. 12. His witness (J B L) explained that the appellant went home on 17th February at around 10.00am returned on duty on 18th February, at 7.00pm. 13. main issues. When the appeal came for hearing Mr. Orina for the appellant submitted on three (i)That the evidence tendered was at variance with the charge sheet. The charge sheet was never amended. (ii)The appellant was convicted of an offence that was non existent at the time of the alleged offence. (iii) The evidence adduced was contradictory. 14. The State through Mr. Mutai Senior Counsel conceded the appeal on the following grounds; (i) The charge was defective. The learned trial Magistrate held so but went ahead to acquit on the principal count and convict on the alternative. (ii) The charge sheet showed the offence was committed before the commencement of the Sexual Offences Act. (iii) The evidence adduced was at variance with the particulars in the charge sheet. The error is not curable. In so conceding it means the state abandoned its cross appeal. 15. This is a 1st appeal and this court has a duty to reconsider and re-evaluate the evidence on record together with the grounds of appeal and arrive at its own conclusion. See Okeno V R 1972 EA 32; Mwangi V R (2004)2 KLR 28. 16. The issues that have been raised about the charge sheet and conceded to by the State will dispose of this appeal. I therefore wish to deal with the said issues. 17. The appellant was charged under the Sexual Offences Act which came into operation on 21 st July, 2006. The particulars in the principal and alternative count state that the offence occurred on 17th February, 2006. It is obvious that the Sexual Offences Act could not apply to such an offence. 18. The evidence adduced in Court referred to the date of occurrence as 17 th February, 2007. Well if this was the date then the Sexual Offences Act was applicable. The only hitch was that the particulars of the charge and the evidence adduced were at variance. There was nothing that stopped the prosecution and/or the Court from arresting the anomaly by having the charge ammended as provided for under Section 214 of the Criminal Procedure Code. 19. The record shows that the appellant made his defence based on the dates given in the charge sheet as 17th February, 2006 and not 17th February, 2007 and this prejudiced him seriously. 20. The principle of Law governing charge sheets is that an accused person should be

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charged with an offence known in law. The offence charged should be disclosed and stated in a clear and unambigous manner so that the accused person may be able to plead to a specific charge that he can understand. This enables the accused person to prepare his defence to the charge. 21. In this case there was no Sexual Offences Act in existence as at 17 th February, 2006 when the alleged offence is said to have occurred. 22. The charge in this case was defective to the extent that it applied the law retroactively instead of retrospectively. 23. The learned trial Magistrate found the charge defective and acquitted the appellant of the principal count but went ahead to convict him on the alternative count. An alternative count is dependent on the principal count. It cannot stand on its own. If the principal count is defective it goes with the alternative count, he therefore erred in making the findings he did. 24. Having made the above findings, I will not go far to look at the other grounds. 25. In light of the above finding, plus the concession of the appeal by the State it follows that there is no way the cross petition of appeal can see the light of the day. It is dismissed. 26. The result is that the Appellants' appeal is allowed. The conviction is quashed and the sentence set aside. The appellant to be released unless held under a separate warrant. Dated, signed and delivered in open court this 23rd day of April, 2015. H.I.ONG'UDI JUDGE In the presence of M/s Mwangi for State Mr. Orina for Appellant present Appellant- Present in Person Lagat- court assistant Interpreted- English/Kiswahili

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