[2023] KEHC 25477 (KLR)

Kirui v Republic (Criminal Revision E067 of 2023) [2023] KEHC 25477 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25477 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Revision E067 of 2023

RL Korir, J

November 16, 2023

Between

Tyson Kipkorir Kirui

Applicant

and

Republic

Respondent

Ruling

1. This Revision has come to me through a Notice of Motion Application dated 19th July 2023 filed by the Applicant’s Counsel where he sought a review of the Applicant’s sentence of twelve months. The Applicant’s grounds were contained in the supporting affidavit sworn by Rogers Mugumya, advocate on 19th July 2023.

2. The Applicant was charged with the offence of being in possession of alcoholic drinks without a license contrary to section 27 (b) as read with section 27 (4) of the Alcoholic Drinks Control Act No. 4 of 2010. He was convicted on his own plea of guilty and was sentenced to serve twelve (12) months in prison.

3. It was the Applicant’s case that it was unjust for him to be sentenced to serve twelve months in prison yet he had been convicted on his own plea of guilty and that he was a first time offender. It was his further case that was remorseful.

4. This court’s Revisionary jurisdiction is exercised under the provisions of section 362 of the Criminal Procedure Code which 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 proceedings of any such subordinate court.

5. I called for and examined the trial court record as required by law. The Record confirmed that the Applicant was convicted on his own guilty plea and sentenced to 12 months’ imprisonment. The Record also showed that the Prosecutor brought to the attention of the court the fact that the Applicant was facing other charges for which there were pending proceedings and that he committed the offence while out on bond.

6. In this case, the Applicant has asked for revision of his sentence. Therefore, the powers exercisable by this court are provided for under section 364 (1) (a) of the Criminal Procedure Code which 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 its knowledge, the High Court may 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.

7. In the case of Joseph Nduvi Mbuvi vs Republic (2019) eKLR, Odunga J. (as he then was) held that:-“In my view, the revisionary jurisdiction of the High Court should only be invoked where there are glaring acts or omissions but should not be a substitute for an appeal. In other words, parties should not argue an appeal under the guise of a revision. It is for this reason that the decision whether or not to hear the parties or their advocates is discretionary save for where the orders intended to be made will prejudice the accused person. As was stated by the High Court of Malaysia in Public Prosecutor vs. Muhari Bin Mohd Jani and Another [1996] 4 LRC 728 at 734, 735:-“The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion…This discretion, like all other judicial discretions ought, as far as practicable, to be left untrammelled and free, so as to be fairly exercised according to the exigencies of each case”.

8. The Applicant was convicted under section 27 of the Alcoholic Drinks Control Act which provides as follows: -(1)No person shall—(a)manufacture, import or distribute; or(b)possess, an alcoholic drink that does not conform to the requirements of this Act.(2)Subsection (1) shall not apply to a person who—(a)is authorized under this Act to be in possession of the alcoholic drink; or(b)has possession of the alcoholic drink in a premises licensed under this Act.(3)The manufacture or distillation of all spirituous liquor prior to this Act referred to as Chang’aa shall conform to the prescribed standards or the requirements of this Act.(4)A person who contravenes the provisions of this section commits an offence and shall be liable to a fine not exceeding two million shillings, or to imprisonment for a term not exceeding five years, or to both.

9. In light of the provisions of section 27 of the Alcoholic Drinks Control Act No. 4 of 2010, it is my finding that the trial court issued a lenient sentence to the Applicant.

10. I have noted that the Applicant was sentenced on 13th March 2023 and has so far served slightly over seven (7) months. I have taken into consideration the fact that he was remorseful. It was however shown that he was not a first time offender and that he faced other unrelated proceedings.

11. The Applicant’s plea was to be fined as an alternative sentence. For this particular offence which attracts a fine in the first instance, I consider his prayer for a fine merited. I have however considered that he has already served a substantial part of the jail sentence. In exercise of my discretion, I find the seven months he has served in prison sufficient.

12. The Applicant is set at liberty forthwith unless otherwise lawfully held.Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 16TH DAY OF NOVEMBER, 2023. .........................R. LAGAT-KORIRJUDGERuling delivered in the presence of the Applicant, Mr. Njeru for the State. Siele (Court Assistant)