https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9982

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUSIA** **CRIMINAL REVISION No. E003 OF 2026** **JOHN BENSON AFULA.…………………………………..……APPLICANT** **-VERSUS-** **REPUBLIC…..……………………….……………..…………...RESPONDENT** **RULING** 1. Before me is a Notice of Motion Application dated 20th February 2026 for revision relating proceedings in Port Victoria Resident Magistrate’s Court MCCR No E297 of 2024. 2. The Solo prayer remaining alive is that, the Court revise and set aside and/or vacate the unlawful irregular proceedings, orders and/or judgment delivered on the 29th October 2025. 3. The Application is premised on the following grounds; 4. **That, the proceedings and judgment violate the rights of the applicant to have a procedurally fair administrative action.** 5. **That, the proceedings and judgment denied the applicant right to access justice and the rights to fair trial as espoused in article 50.** 6. **That, the applicant was convicted based on wrong provision of the law specifically article 50(2)(g) of the Constitution of Kenya 2010 and section 215 of the Criminal Procedure Code.** 7. **That, the accused has never been arrested and thus was not arraigned in any court hence warrants could not issue for a person not before court or in absence of proper application seeking warrants.** 8. **That, the accused was surety for the Julius Bwire Sioka on 21st August 2024 and processed his release without being informed of his involvement in the case or being arrested.** 9. **That, convicting the applicant in absence of arrest, arraignment/charge and procedural prosecution amounts to illegality, irrationality and a violation of the constitution.** 10. **That, It is in the interest of justice that the warrant of arrest against the applicant arising from MCCR NO. 297 OF 2024 be lifted and/or its execution be suspended.** 11. **That, the Honourable court has powers to call for the trial records 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.** 12. **That, this application has been made without unreasonable/inordinate delay and in good faith.** 13. **That, the application ought to be granted in the interests of Equity and justice.** 14. The Applicant supports his application in his sworn Affidavit dated 20th January 2026 deponing that in the year 2024 he learnt Julius Bwire Sioka was arrested and arraigned before port Victoria magistrates court and had been remanded. 15. That he followed up the matter and paid for his release including finding out from the police reason for his arrest. 16. That they managed to bail him out and he ensured he attended court in which at times he escorted him to attend hearings. He is yet to reclaim the said cash bail from court. 17. That he later learnt that warrants had been issued against him on grounds that he has been convicted and sentenced to serve 8 years. 18. That he recently stumbled upon a charge sheet indicating that he had been charged with four count which he has never been made aware of. 19. He believes the proceedings and judgment violate the rights his rights to have a procedurally fair administrative action. 20. That the proceedings and judgment denied him right to access justice and the rights to fair trial as espoused in article 50. 21. That he was convicted based on wrong provision of the law specifically article 50(2)(g) of the Constitution of Kenya 2010 and section 215 of the Criminal Procedure Code. 22. That he has never been arrested and thus was not arraigned in any court hence warrants could not issue for a person not before court or in absence of proper application seeking warrants. 23. That the accused was surety for the Julius Bwire Sioka on 21st August 2024 and processed his release without being informed of his involvement in the case or being arrested. 24. That convicting him in absence of arrest, arraignment/charge and procedural prosecution amounts to illegality, irrationality and a violation of the constitution. 25. That the constitution allows for just determination of any dispute by application of the law decided in a fair and public hearing before a court and he believes that he has the right to benefit equal treatment before the law including challenging my accusers. 26. That it is in the interest of justice that the warrant of arrest against him arising from MCCR NO. 297 OF 2024 be lifted and/or its execution be suspended. 27. The solo issue for determination is whether the Applicant has established a case for revision based on the provisions of Article 165 (6) of the Constitution and under Section 362 of the Criminal Procedure Code. 28. The Primary suit was a criminal case alleging assault causing harm and malicious damage to property and the complainant(victim) opposed the Application. 29. The Victim Mr. Cornel Bwire Ogenga filed a replying Affidavit dated 30th March 2026 opposed the revision Application contending that he reported the case against John Benson Afula and Julius Bwire Sioka at Port Victoria police station which was investigated and taken to court vide Port Victoria criminal case no E297 of 2024. 30. That the two accused persons were charged in court at Port Victoria law court and the 1st accused person was arrested while the Applicant disappeared while aware of the proceedings in port victoria court. 31. That warrants of arrest was issued against Applicant all along during the proceedings and he never saw it prudent to present himself to court or police. 32. That the court heard the case and decided that both accused persons were guilty of the offences so charged. And the Applicant who had absconded court was equally convicted and the warrants of arrest remained in force so that after much running and hiding from the course of justice he was then to face the law as such the instant application is brought to test the strength of the judiciary. 33. That throughout the proceeding the warrants were in place and applicant was aware and he decided to go to hiding he cannot say his rights were violated as he did not appear in court when needed to. 34. That the application herein is brought in bad faith and targeted at shifting the whims of Justice by the applicant. 35. The Victim further submits that, the Applicant was aware of the proceedings against him he decided to disappear from the precincts of the court he is now in this court seeking favour if in the first place he ran away from the court which was ready to hear him. 36. The trial court never committed any mistake, irregularity or illegality worth revision by this court the applicant himself has not told court that he disappeared from Port victoria police custody and went missing until when he was arrested in Eldoret hence bringing the instant application. The trial court not only exercised its jurisdiction properly but also went ahead and gave the investigating officer more time to move the assistant chief and area chief of the applicant to ensure that the applicant comes to court but in vain on can say the applicant has shown vehemently that one can evade justice in the lower court and file a revision in the High Court and you go scot free. 37. This court should reject this invitation by the applicant and that the instant application dated 20th of February 2026 is devoid of merit and it should be dismissed with cost and the applicant proceeds to serve the sentence so imposed as he is the author of his own misfortune. **The Law** 1. The High Court power of revision is set out in **Article 165** which provides: (6) The High Court has supervisory jurisdiction over the subordinate Courts and over 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 direction it considers appropriate to ensure the fair administration of justice. 1. **Section 362** of the Criminal Procedure Code, empowers the High Court to call 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. 2. **Section 364(1)** of the Criminal Procedure Code provides: - “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 his 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 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. 1. It is explicit that, the powers of revision under Section 362 of the Criminal Procedure Code are only to be invoked to enable this Court satisfy 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 Subordinate Court. 2. Therefore, if the Court makes a decision which is wanting in its correctness, legality or propriety or the proceedings are irregular, this Court no doubt will step in and correct the same. 3. This is my understanding of the position as adopted in **Republic vs. Alice Chepkorir & Another [2018] eKLR** where the Court held that: *“it would also appear that the learned trial magistrate fell into anger to make a finding and conclusion not fully based on evidence before the Court but on assumptions and personal knowledge of the circumstances when she said in her ruling: “As at now there is no prosecution in Court. I am aware all the other three Courts are not sitting as at now. There are two prosecutors at this station at least one should be before this Court. This Court cannot be held at ransom…’* 1. That this position was further emphasized by the court in the case of **Munene vs Republic (Criminal Revision E012 of 2024) 2024 (2024) KEHC 12920 KLR** which /highlighted the holding of Odunga J (as he then was) in **Joseph Nduvi Mbuvi v Republic (2019)** eklr, ***"...the object of the revisional jurisdiction of the High Court is to enable the High Court, in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court's revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well."*** 1. **Article 50(2)(f)** of the Constitution which provides; (2) Every accused person has the right to a fair trial, which includes the right— (f) To be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed' 1. Courts have interpreted this right to mean that, a trial can proceed in absentia of an Accused person who absconds court by his wilful conduct. In **Republic v Galma Abagaro Shano [2017] eKLR** the learned Judge held that; *'This court has in a detailed manner determined and ruled that this trial would proceed in the absence of the accused who has waived his right to a fair trial in regard to being present during the trial by absconding and removing himself from the jurisdiction of this court. This court has in its ruling delivered on April 24, 2017 addressed the provisions of Section 206 of the Criminal Procedure Code and Article 50 (2) (f) of the Penal Code. Article 50 (2) (f) provides that: 'Every accused person has the right to a fair trial, which includes the right to be present when being tried unless the conduct of the accused person makes it impossible for the fair trial to proceed.' This court took the view that Section 206 (1) of the Criminal Procedure Code is inconsistent with Article 50 (2) (f) of the Constitution in so far as it allows the court to proceed with the hearing of a case against an accused person who fails to turn up in court in cases where the accused is charged with a misdemeanor and not a felony. My view is that the Constitution of Kenya, being the supreme law of the land does not differentiate the offences be they felonies or misdemeanors. Under the Constitution, every person has a right to a fair trial, which includes the right to be present when being tried unless the conduct of the accused person makes it impossible for the fair trial to proceed. My understanding of this provision is that all the persons who appear before the court charged with either felonies or misdemeanours enjoy equal right to a fair trial which includes the right to be present when being tried unless their conduct makes it impossible for the court to continue with the trial. It was my view that where an accused person, irrespective of the charge he/she is facing, absconds, then he has waived his/her right to be present when being tried and the court therefore can proceed to hear and conclude the trial in his/her absence and even convict and sentence him. This court determined that it would consider the evidence of the prosecution, in the absence of the accused, and decide whether it proved beyond reasonable doubt that the accused caused the unlawful death of the deceased and that in so causing that death the accused had malice aforethought.'* 1. The Criminal Procedure Code empowers the Court to proceed with trial in absentia in limited circumstances where the presence of an accused person Can be dispensed with. 2. **Section 99(1)** of the Criminal procedure Code provides that; *'Subject to the following provisions of this section, whenever a magistrate issues a summons in respect of an offence other than a felony, he may if he sees reason to do so, and shall when the offence with which the accused is charged is punishable only by fine, or only by fine or imprisonment not exceeding three months, or by fine and such imprisonment, dispense with the personal attendance of the accused, if the accused pleads guilty in writing or appears by an advocate.'* 1. This is the provision of law enabling an accused person pleading guilty to send an advocate to plead on his behalf and pay the fine. 2. **Section 194** of the Criminal procedure Code provides; 'Except as otherwise expressly provided, all evidence taken in a trial under this Code shall be taken in the presence of the accused, or, when his personal attendance has been dispensed with, in the presence of his advocate (if any).' 1. In this instance the Applicant was fully aware of this case having paid cash bail of Kshs 50,000/- for his co-accused on the 12th August 2024 and he was issued a receipt no DA-00023337 in his name John Benson, he cannot then claim to have learnt of an adverse judgment against him later. 2. This court has the duty to determine from the proceedings whether the Applicant was aware of the charges facing him and the following facts are apparent and if there was willful disregard of the trial court proceedings giving rise to the absentia trial and whether the Applicants absence in trial was a deliberate conduct. 3. Plea of not guilty against the 1st accused was entered on the 8th August 2024 4. Warrants of Arrest against the Applicant was issued on the 8th August 2024. 5. On the 22nd August 2024 the Investigating Officer PC Amani Munga indicated that he had attempted to enforce the warrants in vain as the police had been to his home but could not trace the Applicant. He further indicated that he had served the Applicant summons thru the Assistant Chief Magwe Sublocation Mr. Morris. He further sought for fourteen (14) days to effect the warrants. 6. On the 12th September 2024 the Prosecutor Mr. Githinji Applied that, the trial proceeds in the absence of the Applicant who according to the prosecutor had made the continuity of the trial impractical due to his absconding. The Trial Court allowed the Application and dispensed with the presence of the Applicant. 7. The trial commenced on the 28th October 2024 to the 22nd January 2025 with the prosecution calling six (6) witnesses and thereafter on the 10th March 2025 the 1st accused and the Applicant were found with a case to answer and placed to their defense, the 1st Accused testifying under oath and calling one (1) witness on the 11th September 2025. 8. On the 10th March 2025 the Prosecutor notified the Court of the police file having disappeared while applying to make copies of photographic evidence to be used in another court matter. The Court allwed the Application while ordering the court file be kept in the strong room. 9. Judgment was delivered on the 22nd October 2025 with the 1st accused and the Applicant being found guilty. 10. Both the Applicant and the 1st Accused were sentenced on the 12th November 2025 with the Prosecutor praying that the judgment and sentence issued be served on the county police commander to affect the warrants of arrest upon the Applicant. 11. From the fact above it is explicit and Apparent that the trial in absentia was triggered by the Application on the 12th September 2024 by the prosecutor and the court considered and allowed the Application in reviewing the proceedings the court finds no fault on the part of the court in allowing the trial to proceed in the absence of the Applicant. 12. During the course of the Trial the Applicant’s absence and the Warrants of arrest in force was in issue on all occasions the matter came up as the proceedings clearly reflects the Applicants absence on the quorum up to and including judgment and sentence implying the consciousness of the court on this issue thus i find no fault as to the correctness, legality or propriety of the proceedings. 13. The Willful absconding by the Applicant is manifest that he was paying cash bail for his co-accused only two (2) days to the charge and it is humanly impossible that his co-accused never notified him of the charges, the Warrants of arrest issued against him. 14. The Applicant further admits that he was ensuring the attendance of his co-accused and was at times present in court. 15. Furthermore, it is on record that the police served summons upon the Applicant thru the Assistant chief. He elected to ignore, lay low and disregard the court process. 16. The Victim of crime has equally deponed of whom he complained of the assault and malicious damage to property and his inclusion in the charge and ultimate trial was of no fault of the court. 17. That said, I believe the Applicant has not made a case warranting revision and thus this Court finds the Application to be without merit and the same is dismissed. 18. The Applicant shall be expected to surrender himself to the Busia Prison to commence his imprisonment sentence. It is so ordered. **Signed, Dated and Delivered at Busia** **on this 9th Day of July 2026*.*** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Mohochi S. M.** **Presiding Judge**