[2020] KEHC 418 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BOMET

CRIMINAL REVISION NO. E001 OF 2020

DANIEL KORIR.......................................................................................APPLLICANT

VERSUS

REPUBLIC..............................................................................................RESPONDENT

(From original conviction and sentence in Criminal Case No. 739 of 2020

of the PM’s Court at Sotik – J. Omwange - SRM)

RULING

1. This revision has come to me through a Notice of Motion dated 22nd October, 2020 and filed on 26th October 2020 by the firm of Tengekyon & Koske Advocates. It is brought under Section 362 of the Criminal Procedure Code Cap 75 Laws of Kenya.

2. In the application filed under Certificate of Urgency, the applicant sought the orders reproduced verbatim as follows:-

(a) THAT the file in Sotik Principal Magistrate’s court Criminal Case number 739 of 2020 Republic Versus Daniel Korir be recalled for the purposes of the review of the sentence.

(b) THAT the sentence of twelve (12) months imprisonment be reviewed and substituted by the imposition of a non-custodial sentence and/or reasonable fine which this Honourable Court may deem justified and fit in the circumstances.

(c) THAT this Honourable Court be pleased to release Applicant/accused forthwith.

3. The Applicant Daniel Korir states in his supporting affidavit that he was found guilty and sentenced to 12 months’ imprisonment for the offence of being in possession of alcoholic drinks without a licence contrary to Section 27 (3) as read with Section 27 (4) of the Alcoholic Drinks Control Act No. 4 of 2010. The Applicant states in numerous averments that he was remorseful, was a first offender, and the sole breadwinner of his family where both his children and siblings depended on him.

4. The Criminal Procedure Code vests in the High Court wide powers in its revision jurisdiction. These are contained in Section 362 through to 366 of the Criminal Procedure Code (Cap.75). Section 362 specifically provides as follows:-

“362. 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 Aor passed, and as to the regularity of any proceedings of any such subordinate court”.

5. Section 164 details how the revision jurisdiction should be exercised. It provides as follows:-

“364. (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 section 354, 357 and 358, and may enhance sentence;.

(b) in the case of any other order than an order of acquittal, alter or reverse the order.

2. No order under this section shall be made to the prejudice of an accused person unless he had had an opportunity of being heard either personally or through 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 arises from a finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”

6. I called for and perused the trial court file. It is true as stated by the Applicant that he was charged and convicted in Sotik PM Criminal Case No. 739 of 2020. The record shows that he was convicted on his own plea of guilty. The record further shows that in mitigation, the state told the court that they had no previous criminal record of the accused. The accused on his part prayed to be pardoned. In convicting the accused, the court stated:-

“Court considers mitigation and that the convict is a first offender and fined Kshs. 200,000/= in default 12 months in jail. Right of Appeal explained.”

7. It is trite that sentencing is a discretion of the trial court and an appellate court should be slow to interfere with such discretion. An appellate court may however interfere where it is shown that the sentence was manifestly excessive. These principles were succinctly explained by the Court of appeal in Bernard Kimani Gacheru Vs. Republic [2002] eKLRthe it held that:-

“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”

8. In the present case the sentence meted out to the Applicant was indeed lawful. He was sentenced under Section 27 (4) of the Alcoholic Drinks Control Act No. 4 of 2010 which provides:-

“A person who contravenes the provisions of this Section commits an offence and shall be liable to a fine not exceeding two million shillings or to imprisonment for a term not exceeding five years or to both.”

9. In the circumstances of this case however, I consider Kshs.200,000/= to be excessive in view of the fact that the prosecution indicated to the court that the accused was a first offender. The accused also pleaded for leniency in his mitigation stating that he was remorseful.

10. The Judiciary Sentencing Policy Guidelines provides at Paragraph 23. 8 provides that being a first offender and remorsefulness are mitigating factors to be taken into account in sentencing. There is nothing on record to show that the trial court actually took into consideration these two mitigating circumstances leading to an excessive sentence. I am therefore justified to interfere with the sentence.

11. I set aside the Kshs.200,000/= fine and the default prison term of 12 months and substitute therefor a fine of ten thousand shillings (Kshs.10,000/=) and in default and in default to serve one years’ imprisonment from the date of conviction and sentence.

12. Orders accordingly

Ruling delivered dated and signed at Bomet this 16th day of December, 2020.

................................

R. LAGAT-KORIR

JUDGE

Ruling delivered in the presence of Mr. Ngeno holding brief for Mr. Koskei for the Applicant, Mr. Murithi for the Respondent, Kiprotich (Court Assistant) and in the absence of the Applicant.