[2019] KEHC 3363 (KLR)
The trial court erred by sentencing the accused to probation when she had not pleaded guilty nor been convicted of the offence. This was a procedural irregularity resulting from the filing of a pre-sentence report instead of a pre-bail report. The High Court, exercising its powers under Sections 362 and 364 of the...
Source-derived case information.
- Citation
- [2019] KEHC 3363 (KLR)
- Parties
- Applicant: Catherine Wawira Nyaga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 28 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Trial Court Orders
- Outcome
- Orders of the trial court set aside; matter referred back to trial court for further orders.
- Judges
- FN Muchemi
- Legal Topics
- Criminal Revision, Sentencing Error, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Wawira Nyaga
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Trial Court Orders
Legal Issues
- 1 Whether the trial court erred in sentencing the accused when she had not pleaded guilty or been convicted.
- 2 Whether the High Court should exercise its revisionary powers to correct the erroneous orders of the trial court.
Ratio Decidendi
The trial court erred by sentencing the accused to probation when she had not pleaded guilty nor been convicted of the offence. This was a procedural irregularity resulting from the filing of a pre-sentence report instead of a pre-bail report. The High Court, exercising its powers under Sections 362 and 364 of the Criminal Procedure Code, found it appropriate to set aside the erroneous orders and refer the matter back to the trial court for proper proceedings. The fundamental reasoning is that sentencing without a conviction or plea of guilt is a nullity and must be corrected to uphold the integrity of the criminal process.
Court Disposition
Orders of the trial court set aside; matter referred back to trial court for further orders.
Orders
- The orders made by the court on 4/09/2019 are hereby set aside.
- This file is hereby referred to the trial court for further orders on 24/10/2019.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CRIMINAL REVISION CASE NO. 28 OF 2019
CATHERINE WAWIRA NYAGA.......APPLICANT
VERSUS
REPUBLIC........................................RESPONDENT
R U L I N G
1. This file is before me for revision under the powers conferred to this court under Section 362 and 364 of the Criminal Procedure Code. The reference letter by the trial magistrate seeks for orders for correction of her orders made on 4/09/2019 inadvertently.
2. On perusal of the file, it is noted that the accused was charged with the offence of threatening to kill contrary to Section 223 of the Penal Code which offence she pleaded not guilty.
3. The trial court on 2/02/2019 directed that a pre-bail report be filed for purpose of consideration for release on bail.
4. The probation officer prepared and filed a pre-sentence report instead of a pre-bail report. On 4/09/2019, the matter was mentioned by Hon. Ndeng’eri who received the pre-sentence report and proceeded to sentence the accused. The honorable magistrate placed the accused on probation for a period of one (1) year.
5. Thereafter, the court noted that there was a mistake since the accused had never pleaded guilty to the offence and had not been tried or convicted of the offence.
6. I have considered the circumstances in this case and the inadvertent mistake on part of the honourable magistrate. I find that this is a suitable case for correction of the mistake which resulted in the wrong orders being issued.
7. I therefore invoke the powers of this court under Section 362 and 364 of the Criminal Procedure Code and make the following orders: -
a. That the orders made by the court on 4/09/2019 are hereby set aside.
b. That this file is hereby referred to the trial court for further orders on 24/10/2019.
8. It is hereby so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 23RD DAY OF OCTOBER 2019.
F. MUCHEMI
JUDGE