1. The Prosecution seeks to amend the Information as the year on the charge sheet reads 2016 instead of 2022. Through its counsel, Ms. Machuma, the Prosecution avers that this application is brought under section 275 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) (“the CPC ”) which allows for amendment of the Information and that if the amendment is allowed, then the Accused shall answer to the Information and he has the right to recall witnesses incase any prejudice will be occasioned upon him. However, the Prosecution submits that no prejudice will be occasioned on the Accused and it agrees to recall all witnesses to be cross-examined as per the amended Information as it has not closed its case.
2. The Prosecution contends that the right to a fair trial under Article 50 includes ensuring that the Accused pleads to the right Information and that there is precedent for such an application as can be seen in Mang'eli v Republic [2023] KECA 1438 (KLR) which involved an amendment to change the name of the complainant. For these reasons, the Prosecution urges the court to allow the amendment of the Information.
3. In response, the Accused, through his counsel, Mr. Kamolo, submits that the Prosecution did not point out the section of the CPC that allows it to amend a defect in a charge sheet as such an amendment is not envisioned by section 75 of the CPC . The Accused states that the amendment seeks to substitute the date of the commission of the offence and yet a defect is deemed to be one that fails to meet the legal requirement of the ingredients of the charge. He submits that the change of date is not a defect capable of being allowed by the court and that what is available is to change the Information completely which he urges the court not to allow. He claims that the Prosecution is attempting to fill in gaps that have emerged as a result of cross-examination, that 8 witnesses have testified and that the Accused will be prejudiced if the amendment is allowed. That the case will have to start de novo and that the Accused will be forced to pay his counsel afresh.
4. I have gone through the parties’ submissions. The Prosecution stated that its application is anchored under section 275 of the CPC which provides in part as follows:
(1)…………
(2) Where, before a trial upon information or at any stage of the trial, it appears to the court that the information is defective, the court shall make an order for the amendment of the information as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice; and any amendments shall be made upon such terms as to the court shall seem just.
(3) Where an information is so amended, a note of the order for amendment shall be endorsed on the information, and the information shall be treated for the purposes of all proceedings in connection therewith as having been filed in the amended form.
5. In Man’geli(supra), the Court of Appeal held as follows:
“….the prosecution made an application to rectify CMM (PW2) name from Synthia to Cynthia. Counsel for the appellant did not oppose the application. The Court allowed the application and the amendment was made. The appellant was not called upon to take plea on the amended charge sheet.
24.In the case of Erick Mbulele vs Republic [2018] eKLR, this Court held;
“ On the ground that the charge sheet was amended close to end of the trial contrary to Section 214 of the CPC, we note from the record that the prosecution applied to amend the charge to correct the name of the complainant both in the main charge and in the alternative charge. The record also indicates that the appellant expressly stated that he had no objection to the correction whereupon the court amended the names accordingly.
We find that the amended charge did not introduce any new matter into the main charge that would have necessitated recalling of witnesses. The amended charge did not prejudice the appellant as it was merely a correction of a typographical error and did not go into the substance of the charge ”.
24. We adopt the above observations and add that, in this case the amendment of ‘S’ to ‘C’ of the CMM (PW2’s) name was a typographical error that did not alter any element of the charge. Neither did it result in the introduction of a new complainant. It was a minor amendment of her name, that was an inconsequential change that did not warrant the reopening of the trial for the appellant to take plea and recall the witnesses. We can find no prejudice that was occasioned to the appellant by this amendment. This ground is without merit and therefore fails.
6. From the above, I am of the view that the amendment of the Information to correct the date of the offence from 2016 to 2022 is a minor and inconsequential change that does not alter the substance of the charge against the Accused. The Prosecution correctly invoked section 275 of the CPC which grants this court the power to amend an Information at any stage of the trial if it appears to be defective.
7. The error is a simple typographical or clerical mistake on the date which is a minor defect in form and not a fatal flaw in substance. The essential elements of the offence, that is, the Accused's identity, the victim's name, the location, and the act of murder remain unchanged. Indeed, this is analogous to a misspelling of a name, which courts have consistently held to be a minor and non-prejudicial defect. The amendment corrects a date, which does not change the accusation the Accused has been defending against since the trial began and the Prosecution has already stated it will recall all witnesses if needed and section 275 also empowers the court to postpone the trial if necessary to allow the Accused to prepare a defence based on the amended Information.
8. While the Accused's counsel raised concerns about the trial starting de novo and incurring additional legal fees, the court has discretion to address such concerns in the course of the trial. The more significant prejudice that the court considers is whether the Accused's ability to defend himself is compromised but given the minor nature of the correction, the risk of such prejudice is minimal.
9. I allow the Prosecution’s application to amend the Information and since the Amended Information is already on record, I deem the same to be properly filed and it should be furnished to the Accused or his counsel if at all the Accused has no sight of it. The Accused is at liberty to recall any prosecution witnesses who have already testified for further cross-examination on the Amended Information
DATED SIGNED AND DELIVERED virtually this 10 th DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Kamolo for the Accused
2. Ms. Machuma for the Prosecution/ODPP
3. Abdisalan- Court Assistant
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2. The Prosecution contends that the right to a fair trial under Article 50 includes ensuring that the Accused pleads to the right Information and that there is precedent for such an application as can be seen in Mang'eli v Republic [2023] KECA 1438 (KLR) which involved an amendment to change the name of the complainant. For these reasons, the Prosecution urges the court to allow the amendment of the Information.
3. In response, the Accused, through his counsel, Mr. Kamolo, submits that the Prosecution did not point out the section of the CPC that allows it to amend a defect in a charge sheet as such an amendment is not envisioned by section 75 of the CPC . The Accused states that the amendment seeks to substitute the date of the commission of the offence and yet a defect is deemed to be one that fails to meet the legal requirement of the ingredients of the charge. He submits that the change of date is not a defect capable of being allowed by the court and that what is available is to change the Information completely which he urges the court not to allow. He claims that the Prosecution is attempting to fill in gaps that have emerged as a result of cross-examination, that 8 witnesses have testified and that the Accused will be prejudiced if the amendment is allowed. That the case will have to start de novo and that the Accused will be forced to pay his counsel afresh.
4. I have gone through the parties’ submissions. The Prosecution stated that its application is anchored under section 275 of the CPC which provides in part as follows:
(1)…………
(2) Where, before a trial upon information or at any stage of the trial, it appears to the court that the information is defective, the court shall make an order for the amendment of the information as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice; and any amendments shall be made upon such terms as to the court shall seem just.
(3) Where an information is so amended, a note of the order for amendment shall be endorsed on the information, and the information shall be treated for the purposes of all proceedings in connection therewith as having been filed in the amended form.
5. In Man’geli(supra), the Court of Appeal held as follows:
“….the prosecution made an application to rectify CMM (PW2) name from Synthia to Cynthia. Counsel for the appellant did not oppose the application. The Court allowed the application and the amendment was made. The appellant was not called upon to take plea on the amended charge sheet.
24.In the case of Erick Mbulele vs Republic [2018] eKLR, this Court held;
“ On the ground that the charge sheet was amended close to end of the trial contrary to Section 214 of the CPC, we note from the record that the prosecution applied to amend the charge to correct the name of the complainant both in the main charge and in the alternative charge. The record also indicates that the appellant expressly stated that he had no objection to the correction whereupon the court amended the names accordingly.
We find that the amended charge did not introduce any new matter into the main charge that would have necessitated recalling of witnesses. The amended charge did not prejudice the appellant as it was merely a correction of a typographical error and did not go into the substance of the charge ”.
24. We adopt the above observations and add that, in this case the amendment of ‘S’ to ‘C’ of the CMM (PW2’s) name was a typographical error that did not alter any element of the charge. Neither did it result in the introduction of a new complainant. It was a minor amendment of her name, that was an inconsequential change that did not warrant the reopening of the trial for the appellant to take plea and recall the witnesses. We can find no prejudice that was occasioned to the appellant by this amendment. This ground is without merit and therefore fails.
6. From the above, I am of the view that the amendment of the Information to correct the date of the offence from 2016 to 2022 is a minor and inconsequential change that does not alter the substance of the charge against the Accused. The Prosecution correctly invoked section 275 of the CPC which grants this court the power to amend an Information at any stage of the trial if it appears to be defective.
7. The error is a simple typographical or clerical mistake on the date which is a minor defect in form and not a fatal flaw in substance. The essential elements of the offence, that is, the Accused's identity, the victim's name, the location, and the act of murder remain unchanged. Indeed, this is analogous to a misspelling of a name, which courts have consistently held to be a minor and non-prejudicial defect. The amendment corrects a date, which does not change the accusation the Accused has been defending against since the trial began and the Prosecution has already stated it will recall all witnesses if needed and section 275 also empowers the court to postpone the trial if necessary to allow the Accused to prepare a defence based on the amended Information.
8. While the Accused's counsel raised concerns about the trial starting de novo and incurring additional legal fees, the court has discretion to address such concerns in the course of the trial. The more significant prejudice that the court considers is whether the Accused's ability to defend himself is compromised but given the minor nature of the correction, the risk of such prejudice is minimal.
9. I allow the Prosecution’s application to amend the Information and since the Amended Information is already on record, I deem the same to be properly filed and it should be furnished to the Accused or his counsel if at all the Accused has no sight of it. The Accused is at liberty to recall any prosecution witnesses who have already testified for further cross-examination on the Amended Information
DATED SIGNED AND DELIVERED virtually this 10 th DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Kamolo for the Accused
2. Ms. Machuma for the Prosecution/ODPP
3. Abdisalan- Court Assistant
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