[2016] KEHC 6208 (KLR)
The court held that since the conviction was quashed and the sentence set aside, any fine paid by the accused must be refunded to him. The court clarified that it has no authority to direct that the refund be made to the advocate, even if the fine was paid on the accused's behalf by another party. The only person...
Source-derived case information.
- Citation
- [2016] KEHC 6208 (KLR)
- Parties
- Applicant: Abdi Isaak Hassan; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 13 of 2014
- Procedural Posture
- Criminal Revision / Ruling on Notice of Motion for Refund of Fine After Conviction Quashed
- Outcome
- Application for refund to advocate declined; clarification issued that refund is to be made to the accused.
- Judges
- GMA Dulu
- Legal Topics
- Criminal Revision Powers, Refund of Fine, Quashing of Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdi Isaak Hassan
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Notice of Motion for Refund of Fine After Conviction Quashed
Legal Issues
- 1 Whether the court can order the refund of a fine paid by the accused after the conviction was quashed.
- 2 Whether the refund of the fine should be made to the accused or to the advocate who represented him.
Ratio Decidendi
The court held that since the conviction was quashed and the sentence set aside, any fine paid by the accused must be refunded to him. The court clarified that it has no authority to direct that the refund be made to the advocate, even if the fine was paid on the accused's behalf by another party. The only person entitled to the refund is the accused, and the trial court should process the refund accordingly. The application for the refund to be paid to the advocate was therefore declined, and the court clarified that the refund, if any, should be made to the accused.
Court Disposition
Application for refund to advocate declined; clarification issued that refund is to be made to the accused.
Orders
- If a fine was paid, it is to be refunded to the accused who was convicted by the magistrate.
- The court has no powers to order that the fine be paid to the lawyer.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL REVISION NO. 13 OF 2014
ABDI ISAAK HASSAN ………………………………… APPLICANT
V E R S U S
REPUBLIC ……………………………………………… RESPONDENT
(From the decision in Kyuso Criminal Case No. 113 of 2014 –B. M Mararo – PM) .
RULING
This matter came before this court on a request for exercise of its criminal revisionary powers through an application filed by Mulinga Mbaluka & Co. Advocates. In exercise of its revisionary powers under section 362 of the Criminal Procedure Code (cap 75), this court ordered as follows:-
“In the circumstances, I exercise this courts revision powers and quash the conviction of the subordinate court herein, and set aside the sentence. I order that if the applicant is in prison, he should be released forthwith unless otherwise lawfully held”.
Thereafter, a Notice of Motion was filed on 12/11/2015 seeking the following orders:-
That the court do give directions on the fine deposited by the convict.
The honourable court do order release of the court fine to M/s Mulinga Mbaluka & Co. Advocates.
After the application was served on the DPP’s office Garissa it was argued interpartes. Mr. Nyasani represented the applicant. The Prosecuting Counsel (Mr. Orwa) held the position that their office could not be dragged into determining whether a fine be paid to an advocate. Mr. Orwa also submitted that the subordinate court should have been called upon to say why they did not pay back the fine, before bringing to this court the present application.
I have considered the application and arguments on both sides.
This court’s orders following the revision application are clear. The conviction was quashed and sentence set aside. It follows that, if a fine was paid, then the same had to be refunded to the accused person. The fine should thus have been refunded to the accused in the trial court.
This court has no powers to order that the fine be paid to the lawyer, I agree with the prosecution counsel that the accused is the person who is entitled to a refund of the fine, even if the fine was paid on his behalf by someone else. The only thing this court can do now is to clarify that if the fine was paid then it is to be refunded to the accused who was convicted by the magistrate.
The above are the orders of the court.
Dated and delivered at Garissa this 3rd March 2016.
GEORGE DULU
JUDGE