CMK v Republic (Criminal Appeal 290 of 2005) [2007] KECA 462 (KLR)
The bottom line
#Kenya's Court of Appeal freed a man sentenced to 15 years because the High Court raised his probation sentence without ever hearing him first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant was afforded an opportunity to be heard before the High Court enhanced his probation sentence to 15 years imprisonment on revision
- 2.Whether the charge of defilement of a girl under the age of 16 years was defective in respect of conduct alleged to have occurred before July 25, 2003, when the age of protection under section 145(1) of the Penal Code was fourteen years
- 3.What orders should follow in light of the State's concession of the appeal
Key legal issues
#Right to be heard before enhancement of sentence on revision
The enhancement of the appellant's probation sentence to 15 years imprisonment was unlawful because he was never given an opportunity to address the court before the revisionary order was made.
The record showed the High Court issued a warrant and, without any apparent hearing, substituted a 15-year sentence for the three-year probation. Section 364(2) of the Criminal Procedure Code expressly prohibits any order under section 364 made to the prejudice of an accused person unless he has been heard personally or by an advocate. The court found the appellant was not given that opportunity and was thereby prejudiced, rendering the revisionary order unsustainable.
Defective charge - retrospective application of the amended age of protection
The charge of defilement of a girl under sixteen was defective because, for the period between December 2002 and July 24, 2003 covered by the particulars, section 145(1) of the Penal Code applied only to girls under fourteen, the amendment raising the age to sixteen having commenced on July 25, 2003.
The particulars alleged the offence occurred 'on diverse dates between December, 2002 and August, 2003'. Prior to the Criminal Law (Amendment) Act 2003 (Act No. 5 of 2003), which commenced on July 25, 2003, section 145(1) protected girls under fourteen years. Charging defilement of a girl under sixteen for conduct predating the amendment was therefore incorrect and rendered the charge defective. The complainant recalled a specific incident on March 18, 2003, when the old provision applied.
Effect of the State's concession
With the State properly conceding the appeal on the hearing point and the court itself identifying the defective charge, the appeal had to be allowed and the appellant released.
The learned principal state counsel conceded the appeal, pointing out that the appellant was not heard in the superior court. The court agreed that the appellant was not heard and was prejudiced, and further found the charge defective. It considered the concession proper and held there was no alternative but to allow the appeal, quashing the conviction and setting aside both the revisionary sentence and the probation order.
Legal principles established
#- An accused person cannot be prejudiced by an order made on revision unless he has first had an opportunity of being heard, personally or by an advocate, in his own defence.
- A charge under section 145(1) of the Penal Code alleging defilement of a girl under the age of sixteen years cannot be sustained in respect of conduct occurring before the Criminal Law (Amendment) Act 2003 came into force on July 25, 2003, when the offence applied only to girls under fourteen.
Court orders
#- 1.The order on revision by the superior court is set aside
- 2.The conviction of the appellant by the trial court is quashed
- 3.The order of probation is set aside
- 4.The appellant to be released from prison forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (revisionary jurisdiction, Nairobi)
- Jurisdiction invoked
- First appellate criminal appeal against a sentence imposed in exercise of the High Court's revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence.
it was incorrect to say that the appellant or any other person could be charged of defilement of a girl under the age of 16 years prior to July 25, 2003. The charge as laid was therefore defective.
we have no alternative but to allow this appeal. We do so with the result that the order on revision by the superior court is set aside, the conviction of the appellant by the trial court quashed and the order of probation set aside. This will result into the appellant being released from prison forthwith unless otherwise lawfully held. It is so ordered.
Issues in the judgment
#The judgment records the probation officer's report as presented on March 7, 2005 and the warrant of arrest as issued on May 15, 2005, yet also states the appellant was brought before Lesiit, J on April 6, 2005 - the chronology is internally inconsistent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CMK v Republic (Criminal Appeal 290 of 2005) [2007] KECA 462 (KLR)", Case Analysis (2007). Criminal Appeal 62 of 2007 (as delivered at Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/462/eng@2007-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.