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MagistrateDismissedNot stated in judgment· [2019] KEMC 10 (KLR)

Republic v George Ngugi & 3 others [2019] KEMC 10 (KLR)

Magistrates' Court (Chief Magistrate's Court)
9 September 2019
LML. N. Mugambi
805 words in judgment
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The bottom line

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A Kenyan magistrate ruled that conspiracy and attempted extortion can be charged together in one charge sheet, and accused persons may object to charges before taking a plea.

What this practically means

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Executive summary

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Before the Chief Magistrate, counsel for the 1st suspect objected to the taking of plea on charges of attempt to extort by threats contrary to section 300(1)(a) of the Penal Code (count III) and conspiracy contrary to section 393 of the Penal Code (count IV), contending that both are inchoate offences with identical particulars so the charges were duplicated and ambiguous under section 134 of the Criminal Procedure Code; counsel for the 3rd and 4th suspects associated himself with the objection. The prosecution, through M/s Kaniu, responded that the offences are distinct - attempt to extort by threats differs from conspiracy, which is complete and involves planning and meeting of minds - and further argued the objection was premature since plea had not been taken. The court first rejected the prematurity argument: the charges had been filed and registered and the accused were already before the court, so any motion on the charges, including one opposing the taking of plea, could not be premature; an accused presented before court is entitled to be heard on objections to the validity or legality of the charge. On the merits, the court distinguished attempt from conspiracy: attempt merges with the completed offence and cannot be prosecuted alongside it, but conspiracy's elements are never included in the related offence; conspiracy is constituted by agreement and common design, whether or not the offence is done. Finding no risk of embarrassment to the accused, the court dismissed the objection.

Key legal issues

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01

Prematurity of objection before plea

Holding

The State's argument that the objection was premature was misconceived; the charges were on file and registered, so any motion touching them, including an objection to taking plea, was competent.

Reasoning

The court held that the charges had been filed and registered with the court and the accused were already before it. Any motion in respect of such charges, including a preliminary motion opposing the taking of plea or seeking dismissal, could not be premature. An accused presented before court is entitled to be heard on objections to the validity or legality of the charge against him.

p. 1
02

Joinder of conspiracy and attempt counts

Holding

Conspiracy is a unique, distinct offence that does not merge with the substantive offence, unlike attempt; both counts may properly sit in one charge sheet.

Reasoning

Attempt merges with the completed offence so the two cannot be prosecuted together, since the elements of attempt are included in the completed offence. Conspiracy is different: its elements are never included in the related offence. Conspiracy is constituted by an agreement to do something illegal, or something legal by unlawful means, whether or not it is done; what must be proved is agreement and common design. The accused would not be embarrassed in their defence.

p. 2

Legal principles established

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  • Once an accused or suspect is presented before court, he is at liberty to be heard on any objection to the validity or legality of the charge, and such a motion cannot be premature merely because plea has not been taken
  • An attempt merges with the completed offence and cannot be prosecuted alongside it, but conspiracy does not merge, so conspiracy and attempt may properly be charged together

Court orders

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  1. 1.The objection to the taking of plea is dismissed; the court found no merit in the objection and dismissed it accordingly
Jurisdiction invoked
Criminal jurisdiction over charges filed before the court under the Criminal Procedure Code and Penal Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v George Ngugi & 3 others [2019] KEMC 10 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2019/10/eng@2019-09-09

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