DUPLICITY OF CHARGES
It is a legal requirement that a charge should not suffer from duplicity. Duplicity occurs where the charge or count charges the accused of having committed two or more separate offences, It is said to new duplex and barred for duplicity. Duplicity occurs when a statute creates offences in the alternative, Section 86 of the Traffic Act illiterates for offences created in the alternative e.g. causing death by driving a motor vehicle:
driving recklessly;
driving at high speed.
Driving in a manner dangerous to the public.
Leaving the motor vehicle on the road in a manner dangerous to the public.
All these are stated in the alternative so that you cannot be charged of two or more but only one of the alternative.
A count charging the accused of causing death by driving the motor vehicle recklessly and at high speed is duplex. The charges should be expressed in the alternative:
Mwambalafu v R (1966) EA 459
The appellant was charged with the alternative counts of an offence i.e. the offence of arson and attempted murder. The particulars of the charge o arson alleged that the appellant had set on fire two houses, one belonging to A and the other belonging to B The houses stood more than 100 yards apart.
He was charged with one count of murder and one count of arson. The particulars stated that he attempted to cause the death of A and his wife by setting on fire 2 house one A’s and the other B’s. Evidence showed that the appellant had attempted murder on 2 occasions. The first , he burnt A’s house and when A took refuge in B’s house, he burnt B’s house as well. The question was whether there was duplicity.
It was found that yes there was, with respect to the arson charge as there were two offences arising from 2 acts of arson. Secondly, there was also duplicity with respect to the attempted murder hence there ought to have been two charges off attempted murder. Thirdly, the attempted murder counts should be framed in the alternative. There ought to be 4 counts and not 2 but the e second attempted murder count should be in the alternative.
Saina v R (1974) EA 83
The appellant was charged on a single count with the offence of housebreaking, theft and handling stolen property. He was convicted but on appeal the High Court found the charge barred for duplicity. It was found that one count charged 3 separate offences i.e. shop breaking contrary to section 306(a) of the penal code, handling stolen goods contrary to section 322 of the penal code. It was forth held that each offence should be set out in a different count. The charge of handling stolen property is in the alternative. The appellant was charged.
Bhatt v R (1960)
The appellant was charged with being in possession of obscene material, contrary to section 181(a) of the penal code.
It was alleged that the appellant for the purpose of or by way of trade for the purpose of distribution or public exhibition had in his possession 37 photographs of an obscene nature which could tend to corrupt the morals of any person etc. Section 181 talks of alternative purposes.
It was held that (on appeal) the particular motive why the appellant has the photos should have been averred to the purposes. It 2as wrong for the charge to refer to many purposes. The averment of several purposes made the charge barred for duplicity. Each of the several particular set out in the charge constituted a separate offence. Charging the accused in this mannered prejudices his defense.
Koti v R (1962) EA 439
Appellant was charged and convicted of wrongfully attempting to interfere or influence witnesses in a judicial proceeding either before or after they had given evidence contrary to section 2121(1) of the penal code. On appeal, it was held that the charge was duplex, i.e. it charged with two offences i.e. interfering with the witness before and after. They should state if it was before or after. If it was before and after there should be 32 counts. Duplicity is allowed in certain circumstances. There are exceptions to the general rule that count should not charge an accused with more than one offence.
Exceptions to the General Rule
Where the form of preferring a charge is allowed by statute. The second schedule of the CPC authorizes charging of 2 offences in one count in respect of:
The offence created under section 330 of the Penal ode in respect of false accounting;
Second schedule authorizes offences creates under the section 304 and section 379 i.e. burglary and stealing. Form 9, in the second schedule.
Pope v R (1960) EA 132
Accused was charged with fraudulent accounting false accounting contrary to section 330(a) of the penal code.
Where the sepaarate offences are charged conjunctively using the word and as opposed to or if the matter relates to one act. In Gichinga v R the appellant was charged with driving a car recklessly. In the particulars, it was stated that he drove in a reckless manner and at a speed which was dangerous to the public having regard to all the circumstances of the case contrary to section 86 of the Traffic Act. The Act employs OR rather than AND. The magistrate acquitted the accused because of duplicity as it alleges the commission of two offences. On revision by the high court it was held that the charge was not duplex and it had been expressed conjunctively and it referred to one incident or act i.e. appellants manner of driving at the relevant time. If it had been expressed using the disjunctive OR. In a. reckless manner or at a high speed it would have been duplex
EFFECTS OF DUPLICITY
The law is not clear. There are two opposing views:
One view holds that duplicity is an incurable defect which can be cured by amending the charge hence if found to be duplex, the accused should be discharged. This was seen in Cherere Gukuli v R (1955) 22 EACA 478 and followed in Saina v R. Those who subscribe to this position hold that a count which charges for two counts is barred for duplicity and a conviction based on it can not stand.
The other view holds that the true test should be whether injustice or prejudice has been occasioned on the accused by the duplicity so that where the accused suffers no prejudice, a conviction o duplicity should not stand. This school relies on section 382 CPC which provides for finding of a sentence or order issued by a court should be reversed or altered on appeal or revision on account of error omission or irregularity in the charge unless the error omission or irregularity has occasioned a failure of justice. This school of thought was followed in:
Kababi v R (1980) KLR 95. The appellants was charged in a single count with causing the dearth of 3 persons by dangerous diving. He was convicted. He appealed, challenged the decision of the court that it was based on a barred charge. It was held that the failure to charge or to file 3 separate counts did not occasion injustice though there was duplicity. The conviction was upheld.
Koti v R: Appellate court found the charge was duplex but declined to interfere because it did not occasion any in justice. It was held that the test in deciding whether a failure of justice occurred or the accused has been prejudiced in his trial.
Mwambalafu v R : the appellate court found that the arson charge was duplex but that it did not occasion any injustice. The court relied on section 382 of the Tanzania CPC.
Mwangi v R: The appellate court found that the charge was duplex but that it had occasioned no injustice.
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