K M v Republic [2014] KEHC 2815 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL REVISION NO. 6 OF 2014

K M …...................................................................................APPLICANT

VERSUS

REPUBLIC ………….…………………………………....RESPONDENT

RULING ON REVISION

This file has been placed before me for purposes of revision.  K M was charged with the offence of making false allegations contrary to Section 38as read with Section (1) (a) (c) (3) of the Sexual Offences  Act No. 3 of 2006. Particulars of the charge being that on the 29thday of November, 2013 at Emali Police StationinNzauni District within Makueni County made false allegations against B M M to the effect that B M M had committed rape against her a fact she knew to be false.

She was arraigned in court on the 1st December, 2013.  The charge was read to her and she admitted it.  She was found guilty, convicted and sentenced to ten (10) years imprisonment.

This court has been moved pursuant to the provisions of Section 362 of the Criminal Procedure Code.  My duty is therefore to satisfy myself of the correctness, legality or propriety of the regularity of the proceedings of the Lower Court which resulted into the conviction made and sentence meted out.

Section 38 of the Sexual offences Act, 2006 was repealed by statute (Miscellaneous Law) Amendment Act, 2012).As a result it is non-existent.   A Magistrate accepting a charge that does not exist in law is erroneous.  A conviction emanating therefrom cannot stand.

Following the irregularity aforestated stated, I do quash the conviction and set aside the sentence meted out.  The applicant shall be released forthwith unless otherwise lawfully held.

It is so ordered.

DATED, SIGNEDand DELIVERED at MACHAKOS this9THday of SEPTEMBER 2014.

L.N. MUTENDE

JUDGE