[2022] KEHC 1747 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CRIMINAL REVISION CASE NO. 170 OF 2021

JORUM MAIGWA WARUKIRA.......................................................1ST APPLICANT

MICHAEL NDERITU WANJIRA.....................................................2ND APPLICANT

VERSUS

REPUBLIC...............................................................................................RESPONDENT

RULING

Brief Facts

1. This application dated 21st September 2021 is brought underSections 362 and 364 of the Criminal Procedure Code seeking revision of the sentence given on 9th September 2021 in Nyeri CM Criminal Case No. 2554 of 2021.

The Applicants’ Case

2. The applicants state that on 6th September 2021, they were charged with the offence of being in possession of forged bank notes contrary to Section 359 of the Penal Code and they entered a plea of guilty.

3. On 9th September, the accused persons state that they were both convicted and sentenced to serve four (4) years imprisonment. At the time of mitigation, the applicants state that they were unable to inform the court that they were innocent handlers of the said notes with no knowledge of their defect. It was further stated that the applicants were unable to present their genuine personal mitigating circumstances, which they believe would have convinced the court to treat them with leniency.

4. The applicants urge the court to reconsider their sentence and afford them a chance of pentance pleaded for a non-custodial sentence.

5. The respondent through Ms. P. Mwaniki did not oppose the application. The counsel submitted that the applicants saved judicial time by pleading guilty at the onset and that they are first offenders. As such, the court may consider a fine or a probation sentence in favour of the applicants.

Issue for determination

6. The issue for determination is whether the applicants have 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.

The Law

7. The High Court power of revision is set out in Article 165which 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.

8. Section 362 of the Criminal Procedure Codeprovides:-

The High Court may 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.

9. 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.

10. The revisionary jurisdiction of the High Court was discussed by Odunga J in a persuasive decision of Joseph Nduvi Mbuvi vs Republic [2019] eKLR:-

“In my considered view, 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.”

11. Similarly Nyakundi J in Prosecutor vs Stephen Lesinko [2018] eKLR outlined the principles which will guide a court when examining the issues pertaining to section 362 of the Criminal Procedure Codeas follows:-

a) Where the decision is grossly erroneous;

b) Where there is no compliance with the provisions of the law;

c) Where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record;

d) Where the material evidence on the parties is not considered; and

e) Where the judicial discretion is exercised arbitrarily or perversely if the lower court ignores facts and tries the accused of lesser offence.

12. The foregoing provisions convey jurisdiction to this court to exercise revisionary powers in respect of orders of the subordinate courts. This court is therefore possessed of the requisite jurisdiction to hear and determine this application.

13. I have perused the trial court record and noted that the learned magistrate took into account the mitigation of the applicants and stated that he was not convinced that the applicants did not know that the notes were fake. The trial magistrate stated that the offence of forgery carried a maximum sentence of seven (7) years and he sentenced the applicants to four (4) years imprisonment. The trial magistrate also took into account the fact that the applicants pleaded guilty to the charge and that they were first offenders as well noting that the offence committed was serious and rampant in the country.

14. However, in my view, the applicants being first offenders ought to have been considered for a lesser imprisonment sentence or a non-custodial sentence for that matter. Further, there is a likelihood as pleaded that the applicants were innocent handlers of the fake currency. The trial court ought to have considered the value of the currency which was only Kshs.1000/=. The foregoing factors were not given due consideration in my view.

15. Having pleaded guilty to the offence, the applicants saved precious judicial time. It is trite law that this factor ought to be considered in sentencing.

16. It is my finding that some crucial factors in sentencing the applicants were not considered. As such, I am of the considered view that this matter qualifies for review under Section 362 and 364 of the Criminal Procedure Code.

17. I find this application merited and it is hereby allowed in the following terms:-

a) The sentence of four(4) years imprisonment is hereby set aside.

b) The applicants are referred for probation report to be filed in court within seven(7) days.

c) Mention for the probation report on 15/03/2022.

18. It is hereby ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 3RD DAY OF MARCH, 2022.

F. MUCHEMI

JUDGE

Ruling delivered through videolink this 3rd day of March, 2022