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Court of AppealDismissedCriminal Appeal No. 581 of 2010

Alexander Likoye Malika v Republic [2015] KECA 764 (KLR)

Court of Appeal of Kenya
23 April 2015
David Kenani MaragaD. K. MaragaJMJ. W. MweraSKS. ole Kantai
2,322 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a defilement appeal, confirming that 'carnal knowledge' wording in a charge is valid and Kenyan courts must not provide free lawyers to every accused person.

What this practically means

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Executive summary

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The appellant was convicted of defilement of a seven-year-old girl contrary to Section 8(1)(2) of the Sexual Offences Act by the Senior Resident Magistrates' Court at Butere after pleading guilty to the charge and to the detailed facts read out in Kiswahili, and was sentenced to life imprisonment. His first appeal to the High Court at Kakamega (Lenaola, J) attacked only the sentence and was dismissed. Before the Court of Appeal at Kisumu, he argued in person that the charge sheet was defective because its particulars used 'carnal knowledge' rather than the statutory phrase 'causing penetration', that the charge was not read in his language, that he was denied state-funded counsel, and that the plea was not unequivocal. The Court, comprising Maraga, Mwera and Kantai, JJ A, in a single judgment of the court, framed the sole legal issue as whether the charge and its particulars were defective and what effect any defect would have on the conviction. Applying Section 134 and Section 137(a)(iii) of the Criminal Procedure Code, the Court held that a charge need not carry the exact wording of the creating statute; 'carnal knowledge' encompasses penetration and conveyed the ingredients of defilement. Any defect was curable and non-prejudicial under Section 382 of the Code. The Court also held there is no constitutional entitlement to state-funded counsel for every accused person. Reiterating that a second appeal under Section 361(1)(a) is confined to matters of law, and noting there is ordinarily no appeal against conviction on a plea of guilty save as to the legality of sentence, the Court dismissed the appeal in its entirety on 23 April 2015, leaving the life sentence intact.

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 as framed and the particulars thereof were defective in using 'carnal knowledge' instead of 'causing penetration' as required by the Sexual Offences Act
  2. 2.What effect any defect in the charge would have on the conviction
  3. 3.Whether the appellant understood the charge given the language in which it was read to him
  4. 4.Whether the State was obliged to accord the appellant legal representation at state expense

Key legal issues

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01

Sufficiency of particulars of a charge using 'carnal knowledge' rather than the statutory phrase 'causing penetration'

Holding

The charge was not defective; the narrative gave reasonable information of unlawful intercourse with a child involving penetration, and the meaning of the information was illustrative of the nature and ingredients of the offence

Reasoning

Section 134 of the Criminal Procedure Code requires a statement of the specific offence with such particulars as give reasonable information of its nature; Section 137(a)(iii) requires brevity and ordinary language, not the exact statutory wording. Black's Law Dictionary shows 'carnal knowledge' denotes sexual intercourse, which necessarily includes penetration. The appellant also understood and admitted the charge and facts.

p. 4
02

Whether the alleged defect in the charge vitiated the conviction

Holding

Any defect was curable and non-prejudicial under Section 382 of the Criminal Procedure Code; the appellant was not embarrassed or prejudiced in any way

Reasoning

Following the court's own decision in Frank Ochieng Otieno v Republic, where a mis-cited section was resolved under Section 382, and Mahero v Republic, where the accused understood the charge and was not prejudiced, an irregularity in a charge that causes no failure of justice cannot justify reversal on appeal.

p. 4
03

Scope of a second appeal against conviction following a plea of guilty

Holding

The only legal issue was the sufficiency of the particulars; whether the particulars were clear enough for the appellant to understand is a question of fact outside the Court's second-appeal mandate

Reasoning

Section 361(1)(a) confines the Court to matters of law. Complaints that the plea was not unequivocal or that the charge was not understood are factual, having been considered and re-evaluated by the two courts below, absent misdirection or abdication of the first appellate court's duty.

p. 4
04

State-funded legal representation for accused persons

Holding

No constitutional requirement exists, under either the retired or current Constitution, that every accused person be provided a lawyer by the State at state expense

Reasoning

The appellant's complaint that the trial court did not afford him an advocate had no basis in law; the Court dismissed that ground without more, as the constitutional text imposes no such general obligation on the State in criminal trials.

p. 5

Legal principles established

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  • On a second appeal under Section 361(1)(a) of the Criminal Procedure Code, the Court of Appeal considers only matters of law and not factual issues decided by the two courts below
  • There is ordinarily no appeal against conviction resulting from a plea of guilty; Section 348 of the Criminal Procedure Code permits only an appeal on the legality of sentence, subject to narrow exceptions
  • A charge is not defective merely because it does not carry the exact wording of the section creating the offence; 'carnal knowledge' in the particulars conveys the ingredients of defilement including penetration
  • Under Section 382 of the Criminal Procedure Code, no conviction or sentence shall be reversed on account of error, omission or irregularity in the charge unless it occasioned a failure of justice

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The conviction and sentence of life imprisonment imposed by the trial court, as affirmed by the High Court, stand

The bench

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

David Kenani Maraga
majority
JM
majority
SK
majority
On appeal from
High Court of Kenya at Kakamega
Kakamega HCCRA No. 25 of 2009
Jurisdiction invoked
Second appeal under Section 361(1)(a) of the Criminal Procedure Code, confining the Court to matters of law only

Relief refused

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Quashing of the conviction on the ground of a defective charge sheet

The narrative 'carnal knowledge' gave reasonable information of the offence including penetration; the defect, if any, caused no prejudice and was cured by Section 382 of the Criminal Procedure Code

p. 4

Setting aside the conviction on the ground that the charge was not read in the appellant's language

The trial magistrate established that the appellant understood the charge and he pleaded guilty in Kiswahili; he also addressed the Court of Appeal in Kiswahili without requesting interpretation

p. 5

Setting aside the conviction for breach of the right to counsel

Neither the retired Constitution nor the current Constitution requires the State to provide an advocate to every accused person at state expense

p. 5

Costs

No costs order was 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.

We are of the considered opinion that the narrative of the offence in the charge sheet was sufficient notwithstanding that such narrative did not carry the exact wording of the Section providing for the offence.
p. 4sufficiency of charge particulars
Whereas the Sexual Offences Act uses the phrase “causing penetration”, carnal knowledge is an all encompassing term that includes the ingredients of defilement.
p. 4meaning of carnal knowledge in defilement charges
We have considered the appeal and for the reasons stated find that the same has no merit at all and we accordingly dismiss it.
p. 5final orders – dismissal of appeal
This being a second appeal we are mandated by Section 361 (1) (a) of the Criminal Procedure Code to consider only matters of law but not factual issues
p. 2scope of second appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Alexander Likoye Malika v Republic [2015] KECA 764 (KLR)", Case Analysis (2015). Criminal Appeal No. 581 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/764/eng@2015-04-23

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