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February 2005

1(a) Advice the police on what charges should be brought against

Sura Mbaya.

I would advice the police to charge Sura Mbaya with three counts of

offences because from the facts I find that there are three distinct

offences from each other.

In the first count I would advice the Police officer to charge him jointly

with others not before court with the offence of stealing motor vehicle

Registration KAT 1114A, Range Rover contrary to section 278A of the

Penal Code. This is because Sura Mbaya jointly with others who have

not yet been arrested committed the offence with common intention

and the offences were committed in the same transaction thus the

reason to charge them jointly.

In the second count, I would advice the Police officer to charge him

jointly with others with the offence of stealing motor vehicle

Registration KZP 325E, Toyota Corolla contrary to section 278A of the

Penal Code. This is because Sura Mbaya jointly with others who have

not yet been arrested committed the offence with common intention

and the offence was committed in the same transaction thus the

reason to charge them jointly.

In the third count, I would charge Sura Mbaya alone because he

was the only person caught engaged in the offence of havingcarnal knowledge of Pendo against her consent contrary to

section 140 of the Penal Code. With sexual offences it is prudent

to charge the offender with the gravest offence so that if he is

not found liable for that offence he shall be found guilty of a

lesser offence even though not included in the charge sheet.

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However, if the offender is charged with a lesser offence and the

prosecution is able to prove rape, the offender shall not be

convicted of rape. This mechanism is used to safeguard against

offenders being let off for a lesser penalty than the offence

committed.

Draft the charge(s)

THE CHARGE SHEET

Count 1:

Name: Sura Mbaya jointly with others not before court.

Statement of Offence

Stealing motor vehicle, contrary to Section 278A of the Penal Code

Particulars of Offence

Sura Mbaya, on the 1st day of January 2005, in Nairobi District within

the Nairobi Province, jointly with others not before the Court, stole

Motor Vehicle No KAT 1114A, Range Rover the property of Mr.Mzuri.

Count 2:

Name: Sura Mbaya jointly with others not before court.

Statement of Offence

Stealing motor vehicle, contrary to Section 278A of the Penal Code

Particulars of Offence

Sura Mbaya, on the 1st day of January 2005, in Nairobi District within

the Nairobi Province, jointly with others not before the Court, stole

Motor Vehicle No KZP 325E, Toyota Corolla the property of Ms. Pendo.

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Count 3:

Name: Sura Mbaya

Statement of Offence

Rape, contrary to Section 140 of the Penal Code

Particulars of Offence

Sura Mbaya, on the 1st day of January 2005, in Nairobi District within

the Nairobi Province, did have carnal knowledge of Ms. Pendo without

her consent.

Sometimes the decision is based on whether there was violence, in

deciding what to charge with. Section 278A can also be used where

one just finds their motor vehicle stolen.