[2022] KEHC 9868 (KLR)

Ababu v Republic (Criminal Case E280 of 2021) [2022] KEHC 9868 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9868 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Case E280 of 2021

RN Nyakundi, J

July 14, 2022

Between

Kelvin Ababu

Accused

and

Republic

Prosecution

Ruling

1. The applicant in this case has approached the court through revisionary jurisdiction in terms of Section 362, 363, 364, 216, 329 and 382 of the Criminal Procedure Code. In addition, as read with Article 165(6) & (7) and Article 50(6) a & b of the Constitution seeking an order to have his sentence reviewed downwards. The convicted applicant had been tried and convicted on his own plea of guilty to three counts of burglary and stealing contrary to Section 304 (2) and Stealing contrary to Section 279(b0 of thePenal Code. As a consequence, he was sentenced to three years imprisonment for count 2 and 3 with an order for the sentences to run concurrently. Through this application he alleges that the sentence imposed was illegal, excessive and punitive bringing it within the review jurisdiction in Section 362 of the CPC and Article 56(a) & (b) of the constitution.

2. The question before the court is whether after evaluating and scrutiny of the record the cumulative effect of the principles of sentencing, the judiciary policy on imposition of sentences and the grounds stated in the application merit grant of the prayers sought to review the impugned sentence. This court reading of the record acknowledges the aggravating factors of the crime so admitted by the applicant. The trial court however apparently accorded great weight to the nature and circumstances in which the offence was committed giving effect to the three years’ period of imprisonment.

The Law 3. It is noteworthy that an application for revision under Section 362 of the Criminal Procedure Code does not explicitly speak of the reasons upon which the exercise of discretion is to be grounded by the Judge. In my view the expanded principles to inform the court revolve around the question whether the judicial officer seized of jurisdiction acted without jurisdiction or failed to exercise the jurisdiction so vested or acted illegally, irregularly or unjustly in coming up with the decision calling for the review of the orders. In the same breadth in review applications one has to prove that there was an error on the face of the record, discovery of new evidence and or sufficient cause. Muyodi –v- Industrial and Commercial Development Corporation & Another (2006) 1 EA 243, Chandrakhant Joshibhai Patel –v- R (2004) TLR, 218.

4. In the instant revision the statutory scheme which forms part of the sanctions against the offence of burglary under 304 and stealing in Section 279(b) provides for a maximum sentence of seven and ten years respectively. The effect of this is that the circumstances of the case reasonably earned the applicant three years on each count which was to run concurrently. Despite the well intentioned demonstrated by the applicant there is no evidence of the sentence being excessive or punitive. As a matter of legal doctrine the sense of illegality, unjustness, incorrectness or wrongfulness of the sentence has to be established by the applicant as the bedrock to answer the questions once again raised on review of the decision. It cannot be said that the verdict on sentence did not satisfy statutory criteria to have it reopened by this court with sole purpose of setting it aside wholly or invalidating it with an order of substitution downwards in favour of the applicant. The flaws submitted by the applicant do not stem from the act of the trier of facts in determining the criminal charges against the applicant. At the end of the process of deliberation giving sufficient weight an interpretation of the law it is my considered view that under Section 382 of the Criminal Procedure Code the application for review lacks merit. The foundation for the presumption that the courts as of necessity will continue receiving evidence to quash or vary a valid sentence without compelling and substantial reasons ought to be discouraged. It could be said therefore that the estoppel and resjudicata doctrines are sufficiently important to require courts to bring re-litigation of the cause of action in criminal trials to finality.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 14TH DAY OF JULY, 2022. ............R. NYAKUNDIJUDGEIn the presence of:-Mr MugunApplicant