[2022] KEHC 1151 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

CRIMINAL REVISION NO. E399 OF 2021

GRACE WANJIRU NDINU……….……..…….. ACCUSED/APPLICANT

V E R S U S

REPUBLIC….….………….………...……PROSECUTOR/RESPONDENT

(Being a revision of the judgement of Hon. Stephen Jalango Principal Magistrate dated 27th August 2021 in the Chief Magistrate’s Court at Makadara in Criminal Case No 995 of 2017, Republic versusGrace Wanjiku Ndinu & Daniel Ndinu Karatu)

RULING ON REVISION

The accused/applicant under certificate of urgency has applied for revision of her following sentences.

A sentence of a fine of shs 50,000/- in default to serve one-year imprisonment in count 1.

A sentence of a fine of shs 100,000/- in default to serve one-year imprisonment in count 2

As sentence of a fine of shs 100,000/- in default to serve one-year imprisonment in count 3

A sentences of a fine of shs 100,000/- in default to serve one-year imprisonment in count 4.

The default imprisonment sentences were ordered to run consecutively; which translated to a total sentence of imprisonment for four years in default of paying the fines.

She has applied that the default sentences of imprisonment be ordered to run concurrently, which will translate to a sentence of one year imprisonment.

The oral submissions of the applicant

The applicant informed the court that she was a first offender. She also informed the court that she has been in custody for a long time.

Furthermore, she pleaded for leniency and for a non-custodial sentence.

The applicant further informed the court that she has been in custody for four years, during which period she gave birth to a baby whom she handed over to her parents for care.

Additionally, she also informed the court she is now reformed and for that reason she urged the court to release her in order to enable her preach the gospel.

The oral submissions of counsel for the respondent

Counsel for the respondent (Ms Joy) submitted that the applicant should have filed an appeal instead of filing an application for revision.

She further submitted that revision cannot be a substitute for an appeal. She cited the decision of this court (Kimaru, J) in Robert Nyaga v Republic (2020) e-KLR in support of her proposition. She submitted that in that case the court held that revision is invoked where there are glaring errors and omissions.

She therefore urged the court to dismiss the application.

Issue for determination.

I have considered the submissions of the parties and the authority cited by counsel for the respondent in the light of the applicable law.

As a result, I find the following to be the issues for determination.

1 Whether the application is properly before this court.

2 Whether the applicant is entitled to the orders sought.

Issue 1

Initiation of applications for revision.

The mode of initiating applications for revision is set out in section 362 of the Criminal Procedure Code (Cap 75) Laws of Kenya, which reads as follows:

“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 proceedings of any such subordinate court”.

It is clear from the foregoing that the High Court has jurisdiction to examine and satisfy itself as to the correctness, legality or propriety of any finding, sentence or order that is recorded; after a matter has been brought before it by an applicant or the court acting on its own motion (suo motu). In the instant application the legality and correctness of the sentence of four years that is recorded against the applicant is challenged by the applicant.

The order in respect of sentence is among the orders in respect of which the High Court is vested with jurisdiction to revise.

Since the High Court is vested with jurisdiction to revise the subject sentence, the High Court may proceed to exercise its powers of appeal under sections 354, 357 and 358, and may enhance the sentence.

In the premises, I find that this court has jurisdiction to revise the order of four years imprisonment that was passed by the learned principal magistrate in the instant application.

The authority relied upon by counsel for respondent is distinguishable from the case at hand. In that case the applicant’s appeal had been dismissed by the High Court. Thereafter the applicant filed an application for revision of his dismissed sentence in the High Court. The High Court in dismissing that application pronounced itself as follows:

“Theprovisions of Section 364 of the Criminal Procedure Code envisage a situation where the accused person after conviction files a revision. The case before me is one where the applicant’s appeal was dismissed by the High Court and then he has come to seek for revision.”

It is clear that the High Court had become functus officio and had no jurisdiction to hear and determine the applicant’s application for revision in that case.

The powers of the High Court in revision are set out in section 364 of the Criminal Procedure Code (Cap 75) Laws of Kenya which reads as follows:

“(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 sections 354, 357 and 358, and may enhance the sentence;

(b) in the case of any other order other 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 has had an opportunity of being heard either personally or by 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.”

In view of the foregoing provisions I find that this court in exercise of its revisionary jurisdiction is authorized to exercise the appeal powers conferred upon it by section 354 of the Criminal Procedure Code.

Issue 2

Since I have found that I have jurisdiction to revise the challenged order I now proceed to consider it on its merit.

In mitigation counsel for the applicant informed the trial court that the applicant had been in custody for a long period. She also urged the court to impose a non-custodial sentence and in the alternatively to impose a sentence of a fine.

Furthermore, the prosecutor informed the court that the applicant was a first offender.

Thereafter the court imposed sentences of a fine in respect of each of the four counts as indicated in the foregoing paragraphs.

There were aggravating factors in the case at hand. First, the complainant lost about Shs 620,800/- through the fraudulently conduct of the applicant.

I have considered the aggravating and the mitigating factors in this case. I bear in minding that sentencing a matter for the discretion of the trial court. I find that the sentences imposed were justified. I find no basis for interfering with the sentencing discretion of the trial court.

In the premises, the applicant’s application fails and is hereby dismissed in its entirety.

Ruling signed, dated and delivered in open court through video conference at Nairobi this 16th day of March 2022.

J M BWONWONG’A

JUDGE

In the presence of:-

Mr. Kinyua: Court Assistant

The accused/applicant - Present

Ms Kibath for the Respondent