[2023] KEHC 17723 (KLR)
The court found that the sentence of one month imprisonment imposed on the applicant for the offence of creating disturbance was within the statutory maximum of six months and was neither incorrect, illegal, nor improper. There was no irregularity in the proceedings or the sentence to justify the exercise of the...
Source-derived case information.
- Citation
- [2023] KEHC 17723 (KLR)
- Parties
- Applicant: Douglas Busdo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E236 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application for revision dismissed
- Judges
- SC Chirchir
- Legal Topics
- Sentence Revision, Supervisory Jurisdiction, Breach of Peace, Penal Code Section 95, Criminal Procedure Code Section 362
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Douglas Busdo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed by the trial court was incorrect, illegal, or improper to warrant revision by the High Court.
- 2 Whether the applicant is entitled to a substitution of the custodial sentence with a fine.
Ratio Decidendi
The court found that the sentence of one month imprisonment imposed on the applicant for the offence of creating disturbance was within the statutory maximum of six months and was neither incorrect, illegal, nor improper. There was no irregularity in the proceedings or the sentence to justify the exercise of the High Court's revisionary jurisdiction under section 362 of the Criminal Procedure Code. The applicant's personal circumstances, including family issues, risk of job loss, and ill health, did not constitute grounds for revision. The proper remedy for dissatisfaction with sentence is an appeal, not a revision. Accordingly, the application for revision was dismissed.
Court Disposition
application for revision dismissed
Orders
- The prayer for revision is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
Busdo v Republic (Criminal Petition E236 of 2023) [2023] KEHC 17723 (KLR) (17 May 2023) (Ruling)
Neutral citation: [2023] KEHC 17723 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Petition E236 of 2023
SC Chirchir, J
May 17, 2023
Between
Douglas Busdo
Applicant
and
Republic
Respondent
Ruling
1. On May 16, 2023 this file was placed before me, under certificate of urgency, seeking for directions or orders pursuant to a letter dated May 15, 2023 seeking for a revision of the sentence passed by the trial court in Kakamega Criminal Case No E008 of 2022.
2. On the grounds for revision, the applicant has submitted that the issue that took him to court is a family issue; that he risks losing his job if the incarceration continues; that he is sickly and consequently prays that the custodial sentence be substituted with a fine.
3. I have considered the letter. The applicant’s application is in respect to count II of the charge. The charge was “creating disturbance in a manner likely to cause a breach of peace contrary to section 95(1)(b) of the Penal Code.” After a full triable he was convicted, and sentenced to serve one month in prison without the option of a fine. He was acquitted on count I and given a fine on count II.
4. Section 362 of the Criminal Procedure Code provides as follows “The High Court may call 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 if any such subordinate court”
5. The offence in respect of which the applicant was charged with attract a sentence of a maximum of 6 months. He was sentenced to one month. There is nothing incorrect, illegal or improper about the said sentence to warrant a revision. This court will only exercise supervisory powers only on instances set out under section 362.
6. If the applicant is dissatisfied with the sentence then he should appeal against the sentence, but not seek for a review. The prayer for revision is hereby dismissed
DATED AT KAKAMEGA THIS 17TH DAY OF MAY, 2023S CHIRCHIRJUDGE