Substitution of Offences: The Limits of Section 179 of the Criminal Procedure Code.

The High Court in Njoroge v Republic (Criminal Appeal E194 of 2023) [2026] KEHC 4958
(KLR) (Crim) (Judgment) reinforces the right to fair trial of an accused person under article
50 of the Constitution of Kenya 2010 by holding that an accused person cannot be convicted
of an offence which he/she was not initially charged with unless the requirements of section
179 of the Criminal Procedure Code are strictly satisfied.

Section 179 of the Criminal Procedure Code which provides that an accused person charged
with a major offence may be convicted of a minor offence if the main offence and the minor
offence are cognate; that is to say, both are offences that are related or alike. This means
that where an accused person is charged and the evidence discloses a lesser offence which
is similar to the initially charged offence(s), then the court can convict the accused person
under section 179 of the Penal Code on the similar lesser offence.

Our client was charged with and acquitted of the offences of conspiracy to commit a felony
contrary to section 393 of the Criminal Procedure Code and stealing by a servant contrary
to section 281 of the Penal Code. The Trial Court however, invoked section 179 of the
Criminal Procedure Code and proceed to convict our client with the substituted offence of
handling stolen property contrary to section 322(2) of the Penal Code.

Dissatisfied with the conviction and sentence of the Trial Court, our client lodged on an
appeal at the High Court. The High Court in overturning the conviction and sentence of the
Trial Court, rightfully held that section 179 of the Criminal Procedure Code was not properly
invoked as the substituted offence which our client was convicted on carried a more severe
punishment.

The offence of stealing by a servant attracts a maximum sentence of 7-year imprisonment
whereas the offence of handling stolen property carries a maximum sentence of 14 years.
Key takeaways

Beyond its legal significance, this decision is instrumental to accused persons who appear
before court without legal representation. Many accused persons are unfamiliar with the
law that applies to criminal proceedings. This exposes them to potential unlawful
imprisonment such as our client who faced a potential 14-year imprisonment on the graver
offence which he was never charged with as opposed to the lesser offence preferred against him which carried a maximum 7-year imprisonment and for which he was acquitted.

This underscores the importance of legal representation in safeguarding the rights of accusedpersons. Article 50(2) secures the right of an accused person to legal representation.

Effective legal representation not only enables an accused person to challenge procedural
irregularities and unlawful convictions, but also ensures that the powers of the court are
exercised within the limits prescribed by law. 

The judgment is a timely reminder that the right to a fair trial is not merely about the outcome
of criminal proceedings but it is equally about ensuring that every conviction is reached
through a fair and lawful process consistent with the Constitution and the law.

Our firm is committed to ensuring that accused persons receive adequate representation
and that their rights are safeguarded throughout the entire criminal trial process.

Ng’ang’a Mbugua
Advocate for the Appellant.