[2018] KEHC 8167 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL REVISION NO. 36 OF 2016

ANN WANJIRU MUTHONI…….……………...................APPLICANT

-VERSUS-

REPUBLIC………………………………...……………PROSECUTOR

RULING

1. The applicant Ann Wanjiru Muthoni who was the accused in Baricho PMCRC No. 632 of 2014 was charged and convicted of House breaking contrary to Section 304 (1) and Stealing contrary to Section 279 (b) of the Penal Code. She was sentenced to serve 4 years imprisonment for each limb and sentence to run concurrently.

2. That the applicant has now filed a revision case whereby she is seeking that the Honourable Court revises her sentence. This is on the ground that she has served one (1) year in remand custody and one year and 5 months since her conviction. That she has engaged in embroidery as vocational training while in prison which will enable her to earn a decent living. In addition, she is 32 years old, a single mother of two children and the only bread winner.

REVISION

3. The power of this Court to revise any order issued by a subordinate Court in a criminal case is provided for under Section 362 and 364 of the Criminal Procedure Code. Once it is brought to the attention of this Court that an order issued was incorrect or illegal, this Court is mandated to examine the record of the said subordinate court to determine the correctness, legality or propriety of the said order. Section 362 of the Criminal Procedure Code provides:

“The High Court may call for and examine the record of any criminal proceedings before any subordinate Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

Section 364 (1) (b) of the Criminal Procedure Code provides:

“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 – in the case of any other order other than an order of acquittal, alter or reverse the order.”

These are the situations where the Court will exercise jurisdiction on revision. The High Court has dealt with this issue.

In the case of Joseph Waweru V Republic [2014]eKLR in a similar case of revision of sentence, the Court held:

“The legality of the sentence meted out has not been challenged because obviously the subordinate court was lenient given that he was found guilty. Furthermore the exercise of the subordinate court’s discretion has not been faulted on the ground of its proprietary. It is now settled that this Court can only interfere with trial court’s discretion where the sentence imposed is against legal principles or relevant factors were not considered or normally where the sentence is manifestly excessive.

In the case of REPUBLIC -Vs- JAGANI & ANOTHER (2001) KLR 590 Hon. Justice Hayanga observed in part that “This Court (meaning the High Court) must be satisfied that there exists to a sufficient extent, circumstances entitling it to vary order or decision of the Court below. Is it shown that it acted upon a wrong principle? Over looked material factors or that sentence was too excessive in the circumstances.”

I am persuaded by the reasoning of this decision and find no basis to depart from it. The applicant was granted a chance to mitigate which he did and the same was properly considered by the Subordinate court.

It is also my finding on the basis of the observations made that the gravity/severity of a sentence should be a ground for appeal rather than revision. In any event the applicant can still pursue this option because a right of appeal against a conviction or a sentence is a fundamental right and may not be denied. However by choosing to come to this Court for revision of his sentence, for me was a wrong option.

4. The offence of House breaking contrary to Section 304 (1) of the Penal Code the maximum sentence is imprisonment for seven (7) years while that of stealing contrary to Section 279 (b) of the Penal Code the maximum sentence is the imprisonment for fourteen years. The accused herein was sentenced to serve 4 years imprisonment for each limb and sentence to run concurrently. This sentence was very lenient. Furthermore, as per the probation report, the accused was not a first offender since she has been convicted of being drunk and disorderly and at one time absconded a Community Service Order sentence. In addition, she had neglected her children and left them with a woman in Kagio who is not a relative such that her estranged husband contributes to their upkeep. Therefore, the claim that she is a single mother of two children and the only breadwinner is false. The sentence was appropriate and fails to meet the test set out in the above authorities for this Court to interfere with the sentence.

5. I am of the view that after considering the circumstances of this case, I find no basis to interfere with the sentence. The application is without merits. I dismiss it.

Dated and delivered at Kerugoya this 31st day of January, 2018.

L. W. GITARI

JUDGE

Read out in open Court, in the presence of Mr. Ombiri, prosecution counsel, court assistant Naomi Murage this 31st day of January, 2018.

L. W. GITARI

JUDGE

31. 01. 2018