Nyadenga v Republic (Criminal Appeal 84 of 1988) [1989] KECA 53 (KLR) (22 June 1989) (Judgment) Nyadenga v Republic[1989] eKLR Neutral citation: [1989] KECA 53 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU CRIMINAL APPEAL 84 OF 1988 JRO MASIME, JA, JE GICHERU & RO KWACH, AG JJA JUNE 22, 1989 BETWEEN JOHN DALLA NYADENGA ................................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (Appeal from a judgement of the High Court of Kenya at Kisumu, Omolo J, dated 25th September 1985 in High Court Criminal Appeal No 183 of 1987)) JUDGMENT 1. 2. An accused person commits the ofience of preparation to commit a felony contrary to section 308 (1) of the Penal Code if he is found “armed with any dangerous or ofiensive weapon in circumstance that indicate that he was so armed with intent to commit any felony. “Thus, an accused person must be found: 1. Armed with any dangerous or ofiensive weapon; and 2. In circumstances that indicate that he was so armed with intent to commit a felony. These ingredients must be specified in the particulars of the ofience under section 308(1). An omission of any one of these ingredients will render the charge for such ofience defective to the extent that it discloses no ofience. If such charge is not suficiently amended, on appeal, a conviction thereon will be quashed - see the case of Matu s/o Gichumu V. Rex,(1951) 18 EACA 311 at page 316. https://new.kenyalaw.org/akn/ke/judgment/keca/1989/53/eng@1989-06-22 1
page 1 of 2
3. The particulars of the ofience under section 308(1) of the Penal Code for which the Appellant, John Dalla Nyadenga, was charged in the Court of first instance read as follows: " John Dalla Nyadenga: On the night of 8th January, 1987 at Kaidakwa estate in Siaya Township in Siaya District of the Nyanza province was found armed with a panga and a rungu with intent to commit a felony.” 4. These particulars made no reference to the panga and the rungu mentioned therein being dangerous or ofiensive weapons. Indeed, the proceedings in the Court of first instance made no intimation that these weapons were dangerous or ofiensive. 5. The words dangerous or ofiensive weapon contemplates the weapon being used to cause peril: or intended for or used in attack. It is not for nothing therefore that these words are used in section 308(1) of the Penal Code. Failure to indicate in the particulars of the ofience set out above that the panga and the rungu were either dangerous or ofiensive weapons amounted to an omission of one of the two ingredients that constitute the ofience under the section aforementioned. A panga and a rungu, as the first appellate Judge rightly pointed out, are not per se dangerous weapons but can be used to infiict injuries on people. The omission of the ingredient mentioned above together with the absence of evidence being led in the court of the first instance that these weapons were either dangerous or ofiensive made the charge against the appellant totally defective. That charge disclosed no ofience. A conviction arising therefrom cannot stand. 6. Accordingly, we allow the appellant’s appeal, I quash his conviction and set aside the sentence of 10 years imprisonment with hard labour together with 3 strokes of corporal punishment. His police supervision order is also set aside. He is to be set at liberty forthwith unless held in custody for any other lawful cause. 7. That is the order of the court. DATED AND DELIVERED AT KISUMU THIS 22ND DAY OF JUNE, 1989. J.R.O. MASIME ................................ JUDGE OF APPEAL J.E. GICHERU ................................ AG. JUDGE OF APPEAL R.O. KWACH ................................ AG. JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/1989/53/eng@1989-06-22 2
page 2 of 2