Section 89 – Proceedings may be instituted either by the making of a complaint or by the bringing before a magistrate of a person who has been arrested without a warrant
(2) A person who believes from a reasonable and probable cause that an offence has been committed by another person may make a complaint thereof to a magistrate having jurisdiction.
(3) A complaint may be made orally or in writing, but, if made orally, shall be reduced to writing by the magistrate, and, in either case, shall be signed by the complainant and the magistrate.
For somebody to be brought formally before the court there must be a formal complaint. The Charge must be drawn in a particular way and if the police bring the charge they will produce it in form of a standard charge sheet that all police have.
We are concerned on how the charge is drawn. The charge is not standard because every offence that can be charged is different and there is no template as no charge is like the other. The circumstances are different. Particulars are always different. The requirement for drawing the charge is that one has to be very sure of what offence has been committed,
Section 89(5) Where the magistrate is of the opinion that a complaint or formal charge made or presented under this section does not disclose an offence, the magistrate shall make an order refusing to admit the complaint or formal charge and shall record his reasons for the order.
A magistrate can discharge under 89(5) if the charge does not disclose an offence. particulars are what gives one what the offence is and whether it falls under a specific provision. One cannot be charged with a non-existent offence.
When somebody makes a report that an offence has been committed the police must look at all the statements from the witnesses and the complainant then they go to the statutes or the penal code to see which offence is being revealed.
Once the police have determined what offence has been committed then the rules that will follow is that firstly every offence that is committed must be charged separately, this is the rule that gives rise to joinder of counts, gives rise to joinder of persons. Counts constitute every individual offence that have been committed in a single transaction. Depending on the number of offences that have been identified one uses e.g. Count 1, Count 2 etc.
The Charge will have a statement of offence which will be the Statement that will tell you what the offence is e.g. Theft contrary to Section 279(b) of the Penal Code. One has to be careful not to join charges. where the facts indicate that two persons were arrested and brought together to the police station, it is possible that the reports are different for both persons, the facts of what offences they have committed might be very different. One should never have counts that are totally unrelated, there must be a nexus.
When one is jointly charging persons, one is charging them in one charge sheet. Where there is a link between any offences or persons then one has a joinder of counts. In the circumstances where one person has committed two different offences at different times and locations, one must have different charge sheets as the offences are unrelated. If one has more than one charge, there must be a statement of offence which is descriptive of the offence.
The particulars of the offence essentially deal with the circumstances under which the offence was committed.
Section 137 (a)(i) a count of a charge or information shall commence with the statement of the offence charge called the statement of the offence;
(ii) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence;
One should never ever have an offence called theft contrary to S 268 as S 268 is descriptive. All offences relating to theft are created by section 279 and other sections. There is a section that creates the offence and the section that prescribes the sentence. The latter part is important when one has a descriptive offence. statement of offence must talk of the section that describes the offence read together with the section that prescribes the sentence.. in some cases the section combines both the description of the offence and the prescription of sentence.
Offences that deal with burglary, burglary occurs between 6pm and 6 am, if the offence occurs between 6am and 6pm it is housebreaking. So burglary will be read together with the section that describes house breaking. One combines the two sections of the penal code on the statement of offence.
137 (a) (iii) After the Statement of Offence, particulars of the offence shall be set out in ordinary language in which use of technical terms shall not be necessary. This means that once a person has determined what the statement of offence is.
One of the main objectives of a charge is to clearly communicate with the accused person the offence to which they have been charged. That is why there is the emphasis that it should be in ordinary language. Simplicity is required so that information which is critical to the accused is communicated in a manner that it is easily understood.
The particulars are the ones that tell the accused person exactly where they committed the offence, the owner, what was stolen if it is theft etc. particulars should also briefly show the elements of the offence the accused is charge with. Like in rape a key element would be to show in the particulars that there was lack of consent. If it is in burglary there must have been forceful entry to constitute burglary.
137(c) talks of description of property.
If the property belongs to say Mutua, then one has to clearly indicate that what was stolen belonged to Mutua. It is sufficient to name one person as the owner. This occurs especially in cases where one has theft from houses.
Invariably people put value to their properties and one of the problems with putting value is that magistrates take that value to determine the bail terms. The value put on property is subjective, and so the danger is the influence it has on bail terms. There is no rule against putting value on stolen property, the value should be real.
If a motor vehicle is stolen, it should be clearly described because it is very easy during the course of trial for someone to dispute some description.
(iii) property belonging to or provided for the use of a public establishment, service or department may be described as the property of Government;
description of persons (d) in the charge sheet describe the accused person, for an accused person, their occupation becomes important in relation to the offence, for example if one is employed, it becomes theft by servant. Their occupation is part of the description of the element of the offence that has been charged, so one has to say who the person is in relation to the victim of the crime.
Where there are aliases it is important to name all the names that the accused goes by.