DEFECTS IN THE CHARGE

Topics: Criminal law, Criminal procedure, Legal burden of proof Pages: 5 (2238 words) Published: July 5, 2015
1(a).IDENTIFY FLAWS IN THE CHARGE AND RECOMEND AMENDMENTS TO IT. Defects in a charge 1show that it has an imperfection or shortcoming or lacking in legal sufficiency. 2Every objection to information by reason of a formal defect on the face of the record shall be taken immediately after the information has been read over to the accused person, however the charge should not be open to objection in respect of its form or contents. It is important to note that not every defect or omission defeats a charge. In the case of 3Alwi v. Republic

It was held that a mere technical defect in the charge sheet which is not fundamental and does not cause a failure of justice is curable and can thus be amended. For example in the Particulars of the Offence in Mabel's charge the word “manager” has been misspelt as “manager” this defect does not occasion failure of justice or cause prejudice to the accused and hence cannot lead to the quashing of the accused's conviction. 4Kilome v. Republic

It was held that the paramount consideration in determining whether or not a defect in the charge is curable or not is whether there is prejudice occasioned to the accused in putting up his defence because of the words used in the charge.

Defects in the Statement of Offence
1. Quoting the wrong Section of the Criminal Procedure Code. The charge sheet has quoted Section 306(c) of the Penal Code but that section does not describe the punishment for the offence of house breaking, it describes the breaking into a building and committing felony, it could be a factory or even a workshop, so this should be amended and the correct section is Section 304(b) which describes the offence of house breaking and its punishment also. 2. Statement of the wrong offence

The offence under Section 281 in the Penal Code is not called Theft by Servant it is called Stealing by Servant and that is what should have reflected on the charge sheet. 3. Non-existent offence
In the statement of offence the offence charged must be one created by a statutory enactment and recognised in the laws of Kenya. One cannot be charged with an offence that is non-existent in Kenya Oremo v. Republic

5A conviction was quashed where the accused was charged with a non existent offence. In the Statement of Offence in Mabel’s Charge,she has been charged with Beating a Security Officer and under the laws of Kenya such an offence does not exist. It should be replaced with the offence of common assault which is in Section 250 of the Penal Code. 4. Use of technical terms

The brief description of the offence under the statement of the offence should be in the ordinary language and hence “c/s” should not be used it should be amended to “contrary to section”.

Defects in the Particulars of Offence
1. Wrong date of when the offence was committed.
The particulars of the date in the charge is not correct, the offence was committed on 17 March 2014 according to the facts of the case and not 17 April 2011 so this should be amended. 2. Particulars of the Location is not clear

The location has been stated as Spring Valley but it should have been more specific and clear as to where Spring valley is located and thus add Nairobi County.

3. Duplicity
Any count that charges within it more than one specific offence is said to be bad for Duplicity. It is also said to be duplex and it is usually a fundamental mistake. 6R. v Saina
The accused had been charged with one simple count with 3 offences. He was charged with house breaking contrary to Section 306(c) of the Criminal Procedure Code, theft contrary to Section 275(3) of the Criminal Procedure Code and handling stolen property contrary to Section 352 0f the Penal Code. The charge was barred for duplicity and the court pointed out that each offence should have been set out differently in its own count. 7Where an accused is charged with more than one offence in one trial then each offence must be set out in a separate paragraph or on a separate...
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