Jarson Onduso Oyuko v Republic [2014] KECA 402 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that courts can convict someone of attempted defilement even when only the full offence was charged, and second appeals cannot challenge sentences.
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 could be convicted of attempted defilement, a charge to which he never pleaded
- 2.Whether the original charge under Section 8 (4) of the Sexual Offences Act was defective and whether the defect was fatal
- 3.Whether a plea must be taken on a lesser offence before conviction on it
- 4.Whether the case was properly investigated
- 5.Whether the torn clothes were properly admitted as exhibits although not recovered at the scene
- 6.Whether the Court could interfere with the severity of the sentence
Key legal issues
#Whether conviction on a lesser uncharged offence without a plea violates the accused's rights
No - conviction on a lesser offence within the same category, after full hearing, is lawful and no plea on the lesser offence is required
The decision whether to convict on the main charge or a lesser offence can only be made after all evidence is heard, so taking a fresh plea mid-trial would be impractical. Section 180 of the Criminal Procedure Code expressly permits conviction of an attempt though not charged. The accused suffered no prejudice as he cross-examined on all aspects. The court cannot, however, convict on a more serious offence than charged.
Effect of a defective charge laid under the wrong subsection of Section 8 of the Sexual Offences Act
The defect was not fatal; the charge under Section 8 (4) was wrong for an eight-year-old complainant, but conviction under Section 9 (2) for attempted defilement cured it
Both counsel and the Court agreed Section 8 (4) applies to children aged sixteen to eighteen, whereas the complainant was eight, so the proper provision was Section 8 (1) as read with 8 (2). Nonetheless conviction under Section 9 (2) for attempted defilement was sustainable both under that section and independently under Section 180 of the Criminal Procedure Code.
Admissibility of exhibits (torn clothes) not recovered at the scene
No complaint of merit; there is no law requiring that only clothes found at the scene be admitted
The respondent submitted, without contrary authority from the appellant, that no statute confines admissibility of clothing exhibits to those recovered at the scene; the Court found the appeal lacked merit on this ground as on the others.
Legal principles established
#- An accused charged with a principal offence may be convicted of the attempted offence although not charged with the attempt, under Section 180 of the Criminal Procedure Code
- A court may, after full hearing, convict on a lesser proved offence within the same category without taking a fresh plea, but never on a more serious offence
- A second appeal court has no jurisdiction over severity of sentence, which is a matter of fact under Section 361 (1) (a) of the Criminal Procedure Code
Court orders
#- 1.The appeal is dismissed
- 2.The conviction for attempted defilement under Section 9 (2) of the Sexual Offences Act and the sentence of ten years imprisonment imposed by the trial court and upheld by the High Court stand
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- H.C.CR.A. No. 190 of 2011
- Jurisdiction invoked
- Second appeal under the Criminal Procedure Code (see Section 361 (1) (a) of the Criminal Procedure Code restricting the Court's jurisdiction on severity of sentence)
Relief refused
#Setting aside the conviction for attempted defilement on the ground that no plea was taken on it
A court hearing a main charge may convict of a lesser proved offence; Section 180 of the Criminal Procedure Code permits conviction of an attempt although not charged
Assistance on severity of sentence
The Court has no jurisdiction to consider severity of sentence on a second appeal
Costs
No costs order was made; the judgment records only that the appeal lacks merit and is dismissed.
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.
Where a person is charged with an offence, he may be convicted of having attempted to commit that offence although he was not charged with the attempt.
All that the court cannot do is to find a person charged with a lesser offence guilty of a more serious offence that carries a more serious sentence.
To conclude, this appeal lacks merit. It is dismissed.
we in law have no jurisdiction to consider severity of sentence as that is a matter of fact - see Section 361 (1) (a) of the Criminal Procedure Code.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jarson Onduso Oyuko v Republic [2014] KECA 402 (KLR)", Case Analysis (2014). Criminal Appeal No. 29 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/402/eng@2014-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.