[2023] KEHC 25949 (KLR)

Ekamu v Republic (Miscellaneous Criminal Application E032 of 2022) [2023] KEHC 25949 (KLR) (29 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25949 (KLR)

Republic of Kenya

In the High Court at Lodwar

Miscellaneous Criminal Application E032 of 2022

RN Nyakundi, J

November 29, 2023

Between

Dominic Ekamu

Applicant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in the Senior Resident Magistrate Court at Lodwar criminal Case No. E257 of 2022 by Hon. D Orimba (SPM) dated 4TH August, 2022)

Ruling

Coram: Before Hon. Justice R. NyakundiMr. Kakoi for the state 1. The Applicant approached this court vide an application dated 3rd May, 2022 seeking orders for review of his sentence. He was charged with the offence of burglary contrary to section 304 (2) and stealing contrary to section 279 (6) of the Penal Code. The applicant pleaded not guilty initially but later on changed his plea to guilty. The trial court proceeded to sentence him to seven years imprisonment for his first charge and fourteen years on the second charge, to run concurrently. Being aggrieved with the sentence, he approached this court seeking a review of his sentence of seven years imprisonment.

Analysis & Determination 2. As the applicant only seeks a review of his sentence, it follows that the only issue for determination is;a.Whether the court should review the sentence.

Whether the court should review the sentence 3. The High Court’s power of revision is set out in Article 165 which provides;(6)The High court has supervisory jurisdiction over the subordinate courts and or any person, body or authority exercising a judicial or quasi-judicial function, but over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any directions it considers appropriate to ensure the fair administration of justice.

4. 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 proceedins of any such subordinate court."

5. The Applicant has not challenged the plea and therefore he accedes that the lea was unequivocal. I note that the application only speaks to the sentence of 7 years’ imprisonment for the charge of burglary. Section 304 of the Criminal Procedure Code Provides;1. Any person who...a.Breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; orb.having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed house breaking and is liable to imprisonment for seven years2. If the offence is committed in the night, it is termed burglary and the offender is liable to imprisonment for ten years.

6. I have considered the sentence meted out and the same was made in accordance with the law. I accordingly find no incorrectness, impropriety or illegality in the decision of the trial court dated 4th August, 2022. The Application for revision lacks merit and is hereby dismissed.It is so ordered.

DELIVERED, DATED AND SIGNED AT LODWAR THIS 29TH DAY OF NOVEMBER, 2023. In the presence of;Mr. Kakoi for the stateApplicant in person.....................R NYAKUNDIJUDGE