https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13058

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **MISC. CRIMINAL APPLICATION NO. E112 OF 2025** **ADAN HASSAN BARE-----------------------------------------------APPLICANT** **VERSUS** **PETROLEUM INSTITUTE OF EAST AFRICA--------1ST RESPONDENT** **REPUBLIC-------------------------------------------------------2ND RESPONDENT** **RULING** **INTRODUCTION** **1**. The applicant by way of Notice Of Motion dated 29th April 2025 expressed to be brought under Article 50, Article 159(2) a) and e) and Article 165 of the Constitution of Kenya, 2010 moved this court for orders:- **a. THAT** the Honourable Court be pleased to certify the application as extremely urgent and that it be heard ex parte at the first instance on priority basis**. (spent)** **b. THAT** this honorable court be pleased to maintain cash bail of Kshs 2,000,000/- granted by the trial court to the Applicant herein pending the hearing and determination of the instant Application. **(spent**) **c. THAT** the sentence referred to in the Warrant of Arrest dated 8th January 2024 be suspended pending the hearing and determination of this Application. **d. THAT** the honourable court be pleased to set aside the ruling and order issued on 25th July, 2022. **e. THAT** costs of and incidental to this Application be in the cause. 1. The application was premised on the following grounds: - **i).** On 3rd November, 2021, learned Magistrate Hon. E. Kimilu (SPM) in Criminal Case No. E524 of 2021 sentenced the Applicant to pay a fine of Kshs 300,000/- or in default to serve a term of 2 years imprisonment for the offence of illegally refilling of L.P.G cylinders of other brand owners to fill contrary to Section 99(1)(m) of the Petroleum Act 2019 and Section 13(1) and 14(a) of the Petroleum (Liquefied Petroleum Gas) Regulations as read with Section 99 (1)(ii) of the Petroleum Act 2019. **ii).** On 26th January, 2024 the Applicant was arrested and detained at Gigiri Police Station pursuant to a warrant of arrest dated 8th January, 2024 to be produced before the magistrate court in Criminal Case No E524 of 2021 for resentencing in compliance with the revision Application made by the 1st Respondent in the absence and without the participation of the Applicant. **iii).** The Applicant learnt at the time of arrest that the 1st Respondent had moved the Court in High Court Criminal Revision Numbers E071, 409 AND 413 OF 2021 seeking revision of the Lower Courts' decisions. **iv).** The Applicant is not aware of when the revision Application was filed or when the three applications were consolidated as there was no application before the court for consolidation of the applications. **v).** The Applicant never participated in the criminal revision Applications and was aggrieved by the decision to set aside the sentence, arrest and detain him pending sentence. **vi).** The Applicant was granted bail of Kshs 2,000,000/- by the trial court pending the hearing and determination of this Application. **Vii).** The Applicant sought stay of the arrest and detention and the suspension of the sentence pending hearing and determination of the instant Application. **Viii).** The Applicant also sought to be admitted to bail on the terms that were given by the trial court or any other terms as this court might deem appropriate pending the hearing and determination of the instant Application. **ix).** The Applicant strictly abided by the bond terms in the subordinate court and will similarly abide by the conditions imposed by the superior Court and thus it was in the interest of justice that the prayer for bail or bond pending setting aside be granted. **x).** The challenge of the impending sentence imposed by the High Court without the participation of the Applicant restores the presumption of innocence. **xi).** No prejudice would be occasioned to any of the parties in the event that the orders sought herein are granted. **xii).** This Application was filed without inordinate delay. **xiii).** It is only fair that the Honourable Court exercises its discretion judiciously and allow the prayers sought in the instant Application. 1. The applicant swore an supporting affidavit basically reiterating the grounds on the face of the application which this court has duly considered. **ANALYSIS AND DETERMINATION**. 1. The applicant moved this court for setting aside of orders issued by a judge of this court basically hinging it on the provisions of Article 50 and 165 of the Constitution. 2. The gist of the applicant’s application is that he was not accorded a hearing thus he was prejudiced and the orders issued against him being prejudicial to him must be set aside. 3. The orders complained of are orders substituting issued by the High Court substituting sentences imposed by the trial court to wit;- **“77. Pursuant to the aforesaid, I set aside the sentence(s) meted out by the respective courts and substitute them as follow** **a) The sentences meted out upon the 2nd Respondent in the first application as follows:** **i.** 1st count: Kshs 40,000, in default to serve six (6) months imprisonment is set aside and substituted with a fine of; Kshs 5,000,000, in default serve a term three (3) year, imprisonment; **ii.** 2nd count: Kshs 10,000, in default to serve three (3) months imprisonment is set aside and substituted with a tine of Kshs 10,000,000 in default serve one (1) imprisonment. **b)** The sentences meted out upon the 2nd respondent in the second application: i. 1st count; to pay a fine of Kshs 1,000,000 in default to serve three (3) years imprisonment is set aside and substituted with a fine of; Kshs. 10,000,000 in default to serve a term three (3) years imprisonment. ii. 2nd count: Kshs. 250,000/or in default serve three. **(3)** years imprisonment is set aside and substituted with fine of Kshs. 10,000,000. in default serve five (5) years, imprisonment of. **c) The 3rd respondent in the second applications** **i.** 2nd count: Kshs. 250,000 or in default to serve three (3) years imprisonment is set aside and substituted with a fine of; Kshs. 10,000,000, in default five (5) years imprisonment. **ii.** 3rd count: Kshs. 250,000, in default serve three (3) years imprisonment is set aside and substituted with a fine of Kshs. 10,000,000. in default one (1) year serve imprisonment. **d) The 4th respondent in the second application:** **i**. 2nd count: Kshs. 250,000, or in default serve three (3) years imprisonment is set aside and substituted with a fine of Kshs. 10,000,000. in default to serve five (5) years. Imprisonment. **ii**. 4th count: Kshs. 250,000 or in default serve three (3) years imprisonment is set aside and substituted with a fine of Kshs. 10,000,000, in default to serve one (1) year imprisonment. **iii.** 5th count: Kshs. 250,000 or in default serve three (3) years imprisonment is set aside and substituted with a fine of Kshs. 20,000, for each seal. The total number of seals was 19, thus to pay the total sum of; Kshs 380, 000,000, in default serve one (1) year imprisonment. **e)** The 2nd respondent in the 3rd application, the fine of Kshs. 300,000 or default to serve 2 years' imprisonment is set aside and substituted with a fine of; Kshs. 10,000,000. in default serve five (5) years, imprisonment.” 1. The impugned orders were therefore prejudicial to the applicant. 2. This court has anxiously perused the record before the two judges who handled the matter to ascertain whether there is any merit in the applicant’s application. 3. The record revealed that the revision Application No. E413 of 2021 came up before the Hon. Justice Bwonong’a on the 16th December 2021 who in the coram indicated that Mr. Omollo was present for the applicant and Ms Joy for the 1st Respondent. Messrs Anyoka for 2nd Respondent is indicated as N/A. 4. The record further indicates that Mr. Omollo informed the court that the application was to be consolidated with other petroleum cases prompting the judge to make an order that the matter be placed before the Hon. Nzioka J. for further directions. 5. On 17th December 2021 the matter went before the Hon. Lady Justice Nzioka ex parte who made the following order: “This matter is among the series of the matters coming up for ruling on 2nd February 2022. The applicant brought the same to the notice of the court and I ordered the file be availed in that case. The ruling on the matter will be on 2nd February 2022.” 1. On 2nd February 2022, the matter was place before Hon. Lady Justice Nzioka and there was no appearance for the 2nd respondent. The court directed that the directions in the matter were given vide HCCR Revision No. E032 of 2021 which was the test case. 2. This court has further noted that the matter was once again placed before the Hon. Lady Justice Nzioka on 28th February 2022 and the indication thereon is that there was a Ms. Adhiambo for the 2nd Respondent but there was no appearance for the other respondents. The court referenced orders made in Revision No. E032 of 2021 and directed that the matter be stood over to 1st March 2022. 3. On 1st March 2022 the matters was before Lady Justice Nzioka and on that day Ms. Adhiambo is indicated as having appeared for the 1st Respondent and the record shows that there was no appearance for the 2nd Respondent. The matter was again stood over to 11th March 2021. 4. On 11th Match 2021, there was no appearance for the 2nd and 3rd Respondents and was the position on 23rd June 2022, 5th July 2022 and 25th July 2022 when the ruling was delivered there was no appearance for 2nd Respondent. 5. The record does not show that the applicant was heard either by himself or through counsel as expressly provided for under Section 364 (2) of the Criminal Procedure Code. 6. The Section reads;- **364. Powers of High Court on revision** **(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—** **(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections [354](https://new.kenyalaw.org/akn/ke/act/1930/11/eng%402023-12-11%22%20%5Cl%20%22att_1__part_XI__sec_354),**[**357**](https://new.kenyalaw.org/akn/ke/act/1930/11/eng%402023-12-11#att_1__part_XI__sec_357)**and**[**358**](https://new.kenyalaw.org/akn/ke/act/1930/11/eng%402023-12-11#att_1__part_XI__sec_358)**, and may enhance the sentence;** **(b) in the case of any other order other than an order of acquittal, alter or reverse the order.** **(c) in proceedings under section 203 or 296(2) of the Panel Code ([Cap. 63](https://new.kenyalaw.org/akn/ke/act/1930/10)), the Prevention of Terrorism Act ([Cap. 59B](https://new.kenyalaw.org/akn/ke/act/2012/30)), the Narcotic Drugs and Psychotropic Substances (Control) Act ([Cap. 245](https://new.kenyalaw.org/akn/ke/act/1994/4)), the Prevention of Organized Crimes Act ([Cap. 59](https://new.kenyalaw.org/akn/ke/act/2010/6)), the Proceeds of Crime and Anti-Money Laundering Act ([Cap. 59A](https://new.kenyalaw.org/akn/ke/act/2009/9)), the Sexual Offences Act ([Cap. 63A](https://new.kenyalaw.org/akn/ke/act/2006/3)) and the Counter-Trafficking in Persons Act ([Cap. 61](https://new.kenyalaw.org/akn/ke/act/2010/8)), where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.** **(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.** **(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.** **(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.** **(5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.** 1. An orderenhancing sentence is certainly an order that cannot issue lawfully against an accused person who is a respondent in a revision without affording him an opportunity to be heard. 2. The order by the learned judge constitutes an error on the face of the record. 3. The Counsel for the applicant appears not to have drawn that to the attention of the judge after he sought a consolidation thus the inadvertence on the part of the court. 4. The duty of counsel to assist the courts in making just decisions is a matter that counsel must take seriously. The variation of a sentence cannot and should not happen in the presence of a public prosecutor without ensuring that the accused who is the subject of the orders sought is present or at least represented by counsel of their own choice or appointed by the state for the accused. 5. The record is rather confusing in that the on the face of the Judgment that parties appears as;- **PETROLEUM INSTITUTE OF EAST AFRICA.………….APPLICANT** **VERSUS** **REPUBLIC........................................................................1ST RESPONDENT** **ANTHONY MWAURA WAITHAKA............................2ND RESPONDENT** **AND** **REPUBLIC.........................................................................1ST RESPONDENT** **OSMAN ABDI OMAR………………………….…..…..2ND RESPONDENT** **JOSEPH NDUNGU GITAU…………………..…...…..3RD RESPONDENT** **DAVID NGAO MBITHI.................................................4TH RESPONDENT** **AND** **REPUBLIC..........................................................................1ST RESPODENT** **ADAN HASSAN BARE..................................................2ND RESPONDENT** 1. The issue that therefore arises is, who was the 2nd respondent under reference between Osman Abdi Omar and Adan Hassan Bare? The record therefore is confusing to the extent that one cannot tell who was the unrepresented party throughout the proceedings in file E 413 of 2021 in which Adan Hassan Bare was the 2nd Respondent. The benefit of doubt thus must go to him. 2. The United Nations **Guidelines on the Role of Prosecutors** **Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990: guideline 13 provides;-** ***“13. In the performance of their duties, prosecutors shall:*** ***( a ) Carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination;*** ***( b ) Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;*** ***( c ) Keep matters in their possession confidential, unless the performance of duty or the needs of justice require otherwise;*** ***( d ) Consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.”(emphasis mine)*** 1. This is guideline requires anyone exercising the power of a prosecutor to be mindful of the rights of the accused in all criminal proceedings. The prosecutor who made the application did not observe this cardinal responsibility of ensuring the that the applicant was not condemned unheard. 2. In **AAS v RRE (Civil Appeal E103 of 2021) [2023] KEHC 20607 (KLR) (14 July 2023) (Judgment)** the court held**;-** ***“It is a fundamental principle of law that no person should be condemned unheard. This right to be heard stems from the latin maxim ‘audi alteram partem’ which literally means ‘listen to the other side’ or ‘let the other side be heard as well’. Natural Justice squires that a person be accorded the right to be heard before any orders adverse to himself are made. Article 50 of the Constitution of Kenya 2010 provides that “ 50(1) every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” [own emphasis]*** 1. The failure to accord the applicant a hearingrendered the ordersissued against himirregular for they were issued against the express provisions of Article 50 (1) of the Constitution 2. In ***Onyango Oyoo v Attorney General [1986-1989] E.A 456*** the court held as follows:- ***“There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. (See Sangram Singh vs. Election Tribunal,Koteh,AIR 1955 SC 664, at 711 – Supreme Court of India)” [own emphasis]*** 3. The applicant clearly did not participate in the proceedings leading to the orders issued against him thus he is entitled to the relief he seeks. 4. In **Ngetich v Republic** (Criminal Revision 001 of 2023) [2023] KEHC 20155 (KLR) (13 July 2023) (Ruling) the court held that: ***“The issues here will incorporate a notice of a hearing on the impugned decision and whether the aggrieved party was accorded an opportunity of legal representation of his or her choice in consonant with Article 49 (1) (c) and 50 (g) & (h) of the [Constitution](https://kenyalaw.org/akn/ke/act/2010/constitution%22%20%5Ct%20%22_blank). The concept of natural justice implies fairness, reasonableness, equity, and equality. These canons developed over time binds every judicial officer tasked with the duty of making decisions that adversely affect the rights of private individuals. It is also true to answer the question whether the decision maker exercising jurisdiction of a subordinate court gave reasons for the impugned decision.*** ***18.The other fundamental principles embodied in the general supervisory powers of the High Court pursuant to Article 165 (6) and (7) of the***[***Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***is to prevent abuse of the process of the court, to make orders for expeditious trial to ensure that substantive justice shall be administered without undue regard to technicalities. Similarly, the consideration of illegality, impropriety, uncertainty, irregularity, illegality, irrationality, error of fact and law on the face of the record within the scope of discretion purportedly exercised by the session magistrate or chairman of a tribunal. In this respect the persuasive dicta in Hitila v Uganda (1969) E.A 219. By the court of Appeal is of legal significance as follows “In exercising its power of revision, the High Court would use its wide powers in any proceedings in which it appeared that an error material to the merits of the case or involving a miscarriage of justice had occurred. It was further held that the court could do so in any proceedings where it appeared from any record that had been called for, by the court or which had been reported for orders, or in any proceedings which had otherwise been brought to its notice.”*** 1. The Criminal Procedure Code under Section 365 provides;- **365. Discretion of court as to hearing parties** **No party has a right to be heard either personally or by an advocate before the High Court when exercising its powers of revision:** **Provided that the court may, when exercising those powers, hear any party either personally or by an advocate, and nothing in this section shall affect [section 364](https://new.kenyalaw.org/akn/ke/act/1930/11/eng%402023-12-11%22%20%5Cl%20%22part_XI__sec_364) (2).** 1. The discretion of the court whether to hear or not to hear the parties is subject to the possible result of a Revision thus the judge elects based on the orders that may eventually result in line with Section 364 (2) of the Criminal Procedure Code. If the orders likely to result are prejudicial to the accused person (respondent) then the court must accord the party a hearing by himself or his appointed legal representative. 2. In the end I find that the application has merit and is hereby allowed. The orders issued against the applicant are hereby set aside. For the avoidance of doubt the effect of this order is that the Revision Application No. E413 of 2021 shall be listed before the presiding Judge of the Criminal Division for hearing of the Revision application on merit in the presence of all the parties. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 18th day of AUGUST 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Habiba: Court Assistant Ms Rotich h/b Nyoika for the Applicant Theuri for the 1st Respondent Mogere for DPP