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THE E.A L.R 2000 OMOLLO V SHAR AND O’KUBASU

THE

EAST AFRICA

LAW REPORTS

[2001] VOLUME 1

• Box ,

NA.IROEI.

Butterworths

Omolo, Shah and O’kubasu JOA 164 East Africa Law Reports [2001] 1 EA

count IS not merely x formal but substannal defect and that in such a an accused person must be taken to have been embarrassed or prejudiced as he does not know what he is charged with, and if he is convicted, of what he has been convicted. We note from the very elaborate and well considered judgment of Mosdell J in Shah’s case that he did not at any stage of that judgment

refer to this point. He correctly found that the charge was bad for duplicity but then proceeded to hold that no actual embarrassment or prejudice had been occasioned to Shah. We would ourselves prefer the decision in Chereæ which, effect, assurnes prejudice, for if that was not so, the court would not have stated as it did that ”We thinV it is impossible to say, and certainly no court has So far as we are aware ever yet said, that an accused person is not prejudiced when offences are charged in one count in the alternative”.

We are ourselves satisfied that when framing a charge under secún 46 of the Traffic Act, the  is bound to choose how it proposes to proceed. ‘-The prosecution Ought to be forced to choose whether they are alleging that:

• the driving was reckless; or
• was at speed;. or
• was in such a mariner; or
• the vehicle was left on the road in such a position or manner or in such a condition as to be dangerous to the public.

We suppose that if the partook of each-and.every one of these elemenB, then the prosecution can bring. them in by the use of the conjunctive “and”, which.in the of MosdeIIJ appeared to make the matter, that is, the use of “and” or ⁱ ‘or” firacal, for he remarked as follows in the Shah ase at page. 202: “The, real offences were causing the deaths of two people by a manner dangerous to the public by reason of one or the other of two viz the speed or manner of driving.. How can it therefŒe, with any sense of reality, that he did •nõt  case he had to answer? It seems- to me that an accused is in  no worse position where the Of the offence are framed di$uncdve}y than when• they are framed • corýu.nc€vely. Is •prejúdice rally occasioned; by the •use òf the word. ‘or’ but not by the use of the word •and’?• Whether ‘or’ or ‘and’ appears in the charge an accused knows •that he must be prepared to meet both limbs of the charge.. Moreover, in the instant appeal, the Appellant knew of:what, in each ,connt, he was convicted because the .maõsrate en¥tened him”.

We •go back ta  case and there, as we have seen, Appellh.ng were t£ed. and convicted on one count of an information which alleged that they had murdered. two .named persons, let us say X and Y. But suppose; a moment, that the charge had alleged in that one count that the had murdered “X” or “Y”? The offence would remain the same, one of murder. But surely an accused person is entitled to know right from the beönning of his

trial the specific person he is being alleged to have murdered? If the conjuncdve • ‘and” is used’ then he knows it alleged he murdered both. But it is no

good telling an accused person to prepare his case on the bass that it is being aleged• he murdered one or the Other of X or Y. That is why we have remarked that MosdellJ does not’ seern to. have drawn•any disånction between charging i.n•the’ã.lternadve two: offences in. one cõunt and-the situaóon in which the. conjunctive “and”: is ased• so that though the-charge is duplex, an accused person: is not necessarily embarrassed or prejudiced. In the •larter case, the duplicity is in the former, it-must be for the reasons given; in Cherzre’scase, and it does not appear to •matter that the accused!

a

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3, Shah and Okubasu JJA CAK       Mwaniki v Republic

was represented by an advocate right from the been-ning of the the advocate should have, but did not, raise objecú)ll to the charge. Ln where two offences are charged In the alternative in one count, the duplic occasioned is invanably fatal, and section 382 of the Criminal Procedure cannot cure such irregularity- The only risk the prosecuaon runs in usin

conjunctive IS that they may well be required to prove both charged, that is, that the Appellant drove at a speed and in a manner dang to the public, before a convicún can be had, for it may well be argued t; only one lirnb is proved, then the charge as laid has not been proved-

It is for these reasons that we allowed the Appellant’s appeal on the term C have already stated.

For the Appellant:

JM Njenga instructed byJM Njenga and Co

For the Respondent:

JM Bw’onwong’a instructed by the Attorney-General

Njagi v Kihara

HIGH COURT OF                  AT NAIROBI