[2022] KEHC 17204 (KLR)

Manyonge v Republic (Criminal Revision E071 of 2022) [2022] KEHC 17204 (KLR) (Crim) (19 September 2022) (Ruling)

Neutral citation: [2022] KEHC 17204 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E071 of 2022

JM Bwonwong'a, J

September 19, 2022

Between

Edwin Simiyu Manyonge

Applicant

and

Republic

Respondent

(Being an application for revision of the sentence imposed by Hon Thibaru, R.M, in Makadara Chief Magistrate’s Court Criminal Case No.1568 of 2022 Republic vs Edwin Simiyu Manyonge)

Ruling

1. The applicant was charged with the offence of stealing contrary to section 268 (1) as read with section 275 of the Penal Code (Cap 63) Laws of Kenya.

2. The particulars of the offence were that on April 6, 2022 at Isiolo Road Kenya Power bulky store in Industrial area within Nairobi county jointly with others not before court stole 60 kgs of copper winding valued at Kshs 110,561/=, the property of Kenya Power and Lighting Company PLC.

3. When the applicant was charged in court, he pleaded guilty to the charge. After mitigation by the applicant, the trial court sitting at Makadara proceeded to sentence him to one-year imprisonment.

4. He has now approached this court by notice of motion seeking the revision of his sentence to a non-custodial sentence. The application is supported by his sworn affidavit. The main averments raised in support of the application are as follows. That he is a first offender and the sole breadwinner of his wife, children and aging parents. Further, he is remorseful for the offence committed. That prior to his arrest and conviction, he was involved in an accident that broke his leg. His continued incarceration therefore jeopardizes his treatment.He prays for a non-custodial sentence.During the hearing of his application, the applicant reiterated the contents of his application and the supporting affidavit.For the respondent, Ms Joy Adhiambo learned Prosecution Counsel submitted that the applicant should have filed an appeal and not an application for revision.She further supported the one-year imprisonment sentence.

Issues for determination 5. The main issue for determination is whether the applicant has made out a case for the grant of the orders sought.

Analysis and determination 6. The power of this court in its revisionary jurisdiction is founded under section 362 of the Criminal Procedure Code (Cap 75) Laws of Kenya which provides that: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.”Article 165 (6) of the Constitution of Kenya provides that: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 not over a superior court.”

7. The jurisdiction of this court is not in doubt in view of the above provisions. Where the court finds that the findings, sentence, or order recorded or passed by the subordinate was either not correct, lawful or proper, the remedy under section 364 is either to reverse the sentence where there is a conviction or alter the finding while maintaining the sentence, reduce or increase the sentence as prescribed by section 354 of theCriminal Procedure Code. The contention that the applicant ought to have approached this court by way of an appeal is without merit as the vesture of a right of appeal upon the applicant does not divest the jurisdiction of this court to revise the sentence. It should be borne in mind that there are many errors that are incapable of being appealed against which the High Court may be called upon to revise.I therefore reject the contention by counsel for the respondent that the applicant should have appealed.

8. The issue that I need to consider therefore is whether to revise the order of the trial court. Section 268 (1) of the Penal Code provides that:"268. (1)A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.”Furthermore, section 275 of the Penal Code provides that:"275. Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.”

9. The above provisions create the offence of stealing and prescribe the punishment generally, in the event that the charge is proved beyond reasonable doubt. Before the trial court, the applicant pleaded guilty to the charge and mitigated after his conviction. The trial court considered the totality of the charge and his mitigation and proceeded to sentence him to one-year imprisonment.

10. In the case ofShadrack Kipkoech Kogo vs Republic, Eldoret Crim Appeal No 253 of 2003, the Court of Appeal stated that: -Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or factors, that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered.”The offence with which the accused is convicted of carries a sentence of three years imprisonment.I have considered the mitigation of the applicant that he was a first offender and that the stolen properties were recovered.

11. In the premises, this court finds that there is no basis to exercise its revisionary powers under sections 362 and 364 of theCriminal Procedure Code (Cap 75) Laws of Kenya and interfere with the sentence meted by the trial court.I find that the sentence imposed was lawful, appropriate, and justified in the circumstances.I therefore find no reason to interfere with the sentencing discretion of the trial court.The application fails and is hereby dismissed.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH DAY OF SEPTEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistant.The appellant in person.Ms. Ntabo for the respondent.