[2012] KEHC 560 (KLR)
The court found that the applicant pleaded guilty to the charge and that the main issue was the legality of the sentence. The court held that its revisionary powers under Section 362 and 364 of the Criminal Procedure Code are limited to correcting irregularities or illegalities and do not extend to rehearing matters...
Source-derived case information.
- Citation
- [2012] KEHC 560 (KLR)
- Parties
- Applicant: Eunice Akinyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 179 of 2012
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application for revision dismissed
- Legal Topics
- Plea Taking Procedure, Sentencing Principles, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Akinyi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial magistrate followed the correct procedure in taking the applicant's plea.
- 2 Whether the sentence imposed was excessive and failed to consider the applicant's mitigating circumstances.
- 3 Whether the applicant was denied the right to mitigation and an option of a fine.
Ratio Decidendi
The court found that the applicant pleaded guilty to the charge and that the main issue was the legality of the sentence. The court held that its revisionary powers under Section 362 and 364 of the Criminal Procedure Code are limited to correcting irregularities or illegalities and do not extend to rehearing matters that could be addressed on appeal. Since the applicant had a right of appeal against the conviction and sentence, and no such appeal had been filed, the court declined to exercise its revisionary jurisdiction. The court also noted that Section 354, cited by the applicant, pertains to appellate powers and was not applicable in the absence of an appeal. Accordingly, the...
Court Disposition
application for revision dismissed
Orders
- The application for revision is declined.
- This order to be served upon M/s Ogaro Orayo.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
High Court at Kericho
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EUNICE AKINYI.....................................................................................APPLICANT
-VERSUS-
REPUBLIC.....................................................................................RESPONDENT
REVISION
The Application for revision is made by M/s Ogaro Orayo and Company Advocates for the applicant pursuant to Section 354, 362 and 364 of the Criminal Procedure Code. This is as a result of orders issued by the Honourable M. I. Shimenga, Resident Magistrate in Criminal Case No. 1646/2012.
The grounds relied on are that:
1. THAT the trial Magistrate erred in law by not following the due process of taking plea as outlined in the case law of Adan v Republic (1973) EA.
2. THATthe trial Magistrate erred in law by meting out an excessive custodial sentence bearing in mind she was the sole bread winner and provider to her four (4) children who are of tender years, the last born being aged only two years.
3. THATthe trial Magistrate erred in law and fact by convicting the applicant without noting the facts of the case and by relying on personal information provided by the prosecution.
4. THAT the trial magistrate hastened the trial and convicted the applicant without giving the applicant enough time and freedom to mitigate hence suppressing the applicant’s constitutional rights.
5. THAT the trial magistrate erred in Law and fact by sentencing the applicant to six months imprisonment without offering an option of a fine.
It is also supported by an affidavit sworn by the Applicant.
Section 354 alluded to is in respect of powers to be exercised by the High Court after hearing an appeal hence not relevant at this stage as no petition of appeal has been filed in the instant matter.
Section 362 empowers this court to call for records for the subordinate court for the purpose of satisfying itself of the regularity of the proceedings before the court.
Section 364 is in respect of orders to be made upon revision.
I have perused the lower courts record and noted that the accused pleaded guilty to the charge. The issue would be on legality of sentence.
In the instant case, there is a finding and sentence.
A right of appeal was open for the Applicant. In the circumstances, taking into consideration provisions of Section 364 (5) of the CPC.
I decline to grant orders sought by way of Revision.
This court having exercised its discretionary power pursuant to Section 365 of the CPC it is ordered that this order be served upon M/s Ogaro Orayo.
DATEDat KERICHO this 10th day of October, 2012
LILIAN N. MUTENDE
RESIDENT JUDGE