[2020] KEHC 1999 (KLR)
The court found that the applicant had already exercised his right of appeal against both conviction and sentence, which was dismissed by the High Court. The sentence imposed by the trial magistrate was within the law and not the maximum, and the applicant's mitigation was considered at trial. There was no...
Source-derived case information.
- Citation
- [2020] KEHC 1999 (KLR)
- Parties
- Applicant: David Muchangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 24 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- LM Njuguna
- Legal Topics
- Stock Theft, Sentencing Review, Revision Jurisdiction, Mitigation, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Muchangi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the High Court should exercise its revisionary powers to alter the applicant's sentence for stock theft.
- 2 Whether the applicant's reformation, mitigation, and time spent in custody warrant a reduction of sentence.
- 3 Whether the application for revision is competent given the prior appeal and dismissal.
Ratio Decidendi
The court found that the applicant had already exercised his right of appeal against both conviction and sentence, which was dismissed by the High Court. The sentence imposed by the trial magistrate was within the law and not the maximum, and the applicant's mitigation was considered at trial. There was no illegality, impropriety, or irregularity in the proceedings or sentence to warrant the exercise of the High Court's revisionary powers. The application for revision was therefore without merit and dismissed.
Court Disposition
application dismissed
Orders
- The application for revision is dismissed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CRIMINAL REVISION NO. 24 OF 2019
DAVID MUCHANGI........................................................................APPLICANT
AND
REPUBLIC....................................................................................RESPONDENT
RULING
The applicant herein was charged and convicted with the offence of stock theft Contrary to Section 278 of the Penal Code and sentenced to serve ten (10) years imprisonment. The particulars were that; on the 12th day of April 2014 at Kathungururu Village Kathangari Sub Location within the Embu County, jointly with others not before the court stole one brown bull valued at kshs. 10,000/- the property of ANNA IRIMBA.
He has moved this court by way of an application for review filed on the 20th day of September, 2010. In his application, he states that he has fully reformed and that he has been engaging himself in rehabilitation programs while in prison. He further states that he was a first offender and has regretted the commission of the offence.
The applicant has urged the court to exercise its powers of leniency and consider the provision of Article 50(2) of the constitution which provides that an accused person should benefit from the least severe punishment for an offence if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.
When the application came up for hearing, he relied on his written submissions in which he has reiterated the contents of his application save to add that the time he had spent in custody be taken into account when computing the sentence.
On her part, counsel for the respondent made no submissions but left it to the court to decide.
The court has considered the application and the submissions by the applicant.
The powers of the High Court in revision is contained in Section 362 through to section 366 of the Criminal Procedure Code (Cap 75).
Section 362 provides;
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purposes 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(5) provides as follows;
“Unless 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”
It is clear that the provision of section 364(5) can only be invoked where there are glaring acts or omission but should not be a substitute for an appeal.
I note from the record that the applicant appealed against both the conviction and sentence in criminal appeal number 50 of 2014 at Embu.
The High Court dismissed his appeal and found that the conviction was safe and the sentence was within the law.
The court notes that the sentence that was imposed by the trial Magistrate was not the maximum sentence and in imposing the same, the court took into account the applicant’s mitigation.
In the circumstances, I find that the application has no merits and it is hereby dismissed.
Orders accordingly.
Dated, Delivered and signed at EMBU this 23rd day of October, 2020.
........................
L. NJUGUNA
JUDGE
In the Presence of
..................................For the Applicant
..............................For the Respondent