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Court of AppealPartially AllowedCriminal Appeal No. 6 of 2000

Achoki v Republic (Criminal Appeal 6 of 2000) [2000] KECA 143 (KLR)

Court of Appeal
23 March 2000
ROR. S. C. OmoloALA. A. LakhaSBS. E. O. Bosire
1,045 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a rape or attempted rape charge must state the act was non-consensual, or the conviction cannot stand.

What this practically means

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Executive summary

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The appellant was convicted by the Senior Resident Magistrate at Kisii of attempted rape under Section 141 of the Penal Code as read with Section 388(1) and sentenced to life imprisonment with hard labour and three strokes of the cane. The magistrate made no findings on the alternative count of indecent assault under Section 144(1). His first appeal to the High Court at Kisii (Waweru J) was dismissed on conviction, with the life sentence reduced to seven years and the caning confirmed. On second appeal, where only matters of law fell for consideration, the State conceded that the attempted rape conviction could not be sustained. The Court held that Section 139 of the Penal Code places lack of consent at the core of rape, so a charge of rape or attempted rape must allege in its particulars that the (attempted) carnal knowledge was unlawful and without the woman's consent. The particulars here did neither, rendering the charge incurably defective and the conviction unsustainable. However, the alternative charge of indecent assault remained on the record with no findings made on it by either court below, leaving the Court free to determine it. The accepted evidence - that the appellant knocked the complainant down, tore off her knickers and lay on top of her attempting to get between her thighs while she screamed - supported indecent assault. The Court set aside the attempted rape conviction and substituted a conviction under Section 144(1), reduced the sentence to four years' imprisonment with hard labour running from the original sentencing date, and confirmed three strokes of the cane. The appeal was thus partially allowed.

Questions the Court framed

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

  1. 1.Whether the charge of attempted rape, whose particulars did not allege that the attempted carnal knowledge was unlawful and without the complainant's consent, disclosed an offence known to law
  2. 2.Whether the Court should make findings on the alternative charge of indecent assault which neither court below determined
  3. 3.What conviction and sentence should be substituted, if any

Key legal issues

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01

Defectiveness of the attempted rape charge

Holding

The charge was incurably defective because its particulars did not allege that the attempted carnal knowledge was unlawful and without the complainant's consent; the conviction on it could not stand.

Reasoning

Section 139 of the Penal Code defines rape around lack of consent. Consent is so central that even apparent consent obtained by force or personation still leaves rape; conversely, consent negates rape. A charge of rape or attempted rape must therefore allege both unlawfulness and absence of consent. The particulars here alleged neither, so the charge disclosed no offence known to law and the conviction was wrongly founded. The State conceded the conviction could not be sustained.

p. 2
02

Power to convict on the alternative charge on second appeal

Holding

The alternative charge of indecent assault remained on the record with no findings made on it by either court below, so the Court of Appeal could itself make findings and convict on it.

Reasoning

Although the magistrate convicted on the main charge and made no findings on the alternative count, and the first appellate court likewise made no findings, the alternative charge remained live. The evidence accepted by both courts below - that the appellant knocked the complainant down, tore off her knickers and lay on top of her attempting to get between her thighs - supported indecent assault under Section 144(1). The Court substituted a conviction and reduced the sentence to four years.

p. 2
03

Scope of a second appeal

Holding

A second appeal to the Court of Appeal lies only on matters of law; concurrent findings of fact by the trial magistrate and the first appellate judge are not open to interference.

Reasoning

The appellant's appeal to the High Court had been dismissed on conviction with only the sentence reduced. Before the Court of Appeal, the matter was a second appeal, so only questions of law fell for consideration. The factual findings accepting the complainant's and P.W. 2's evidence were concurrent and entitled to be made on the material, leaving no basis for interference with them.

p. 2

Legal principles established

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  • On a charge of rape or attempted rape, the particulars must state that the (attempted) carnal knowledge was unlawful and without the consent of the woman or girl; a charge omitting these elements does not disclose an offence known to law.
  • On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law and it will not interfere with concurrent findings of fact by the courts below.

Court orders

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  1. 1.Conviction under Section 141 of the Penal Code set aside and substituted with a conviction under Section 144(1) of the Penal Code (indecent assault on a female)
  2. 2.Sentence of seven years imprisonment set aside and substituted with four years imprisonment with hard labour to run from the date of the original sentence by the magistrate
  3. 3.Appellant sentenced to receive three strokes of the cane

The bench

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

RO
majority
AL
majority
SB
majority
On appeal from
High Court of Kenya at Kisii
H.C.CR.A. No. 187 of 1999
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code, limited to matters of law

Relief refused

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Outright acquittal on all charges

The evidence accepted by both courts below supported the alternative charge of indecent assault, on which the Court itself made findings

p. 2

Costs

No costs order made (criminal appeal)

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.

Whether the charge be one of rape under Section 140 or attempted rape under Section 141 of the Penal Code , the particulars must nevertheless state that the attempted unlawful carnal knowledge was without consent of the woman or girl.
p. 2Essential particulars of a rape/attempted rape charge
That charge did not disclose an offence known to the law and the appellant was wrongly convicted on it.
p. 2Effect of omitting consent and unlawfulness from the particulars
The appellant now comes before us on a second appeal and that being the position, only matters of law fall for our consideration.
p. 1Scope of second appeal
Accordingly, we set aside the conviction recorded under Section 141 (1) of the Pena l Code and we substitute therefor a conviction under Section 144 (1) of the Penal Code .
p. 2Final orders - substitution of conviction
We set aside the sentence of seven years imprisonment and substitute it with one of four years imprisonment with hard labour to run from the date of the original sentence by the magistrate. We also sentence the appellant to receive three strokes of the cane.
p. 2Final orders - substituted sentence

Issues in the judgment

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minor

The judgment refers to setting aside the conviction 'recorded under Section 141 (1)' although the charge was laid under Section 141 as read with Section 388(1), and elsewhere the section is cited as 141 without a subsection; the discrepancy appears to be typographical.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Achoki v Republic (Criminal Appeal 6 of 2000) [2000] KECA 143 (KLR)", Case Analysis (2000). Criminal Appeal No. 6 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/143/eng@2000-03-23

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