[2022] KEHC 15960 (KLR)

Mongare & 2 others v Republic (Criminal Revision E009, E011 & E012 of 2022 (Consolidated)) [2022] KEHC 15960 (KLR) (16 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15960 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Revision E009, E011 & E012 of 2022 (Consolidated)

GL Nzioka, J

November 16, 2022

Between

Edwin Amima Mongare

1st Applicant

Vickson Okenyi Nyaribio

2nd Applicant

Wilson Wanyonyi Makeni

3rd Applicant

and

Republic

Respondent

Ruling

1. The applicant were arraigned before the Chief Magistrate’s Court at Naivasha charged vide Criminal Case No 415 of 2018, with three offences of; robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. The 2nd applicant was charged in the alternative count with offence of; handling stolen goods contrary to section 322(1) of the Penal Code. The particulars of all the charge are as per the charge sheet.

2. The applicants pleaded not guilty and the case proceeded to full hearing. At the conclusion of the case the trial court acquitted them on the charges of; robbery with violence but pursuant to; section 179 of the Criminal Procedure Code; convicted them of a lesser charge of; handling stolen goods and sentenced each one of them to serve four (4) imprisonment term.

3. However, on February 22, 2022, the applicants filed chamber summons application (herein “consolidated applications”), seeking that, the court do factor the time spent in remand during the hearing of the case in the trial court, in the sentence meted out.

4. The applications are further supported by the applicants’ supporting affidavits in which they aver that, they were charged with the offences of robbery with violence as aforesaid and sentenced to (4) years imprisonment on the charge of handling stolen property. However, the period spent in remand custody was not computed in the subject sentence.

5. That the respondent will not suffer any prejudice if the orders sought are granted and furthermore, the High Court has jurisdiction to hear and determine the consolidated applications under; article 165 (3)(b) of the Constitution of Kenya, 2010.

6. It is noteworthy that, the respondent did not file a response to the consolidated applications. Be that as it were, the law governs revisionary power of the High court is provided for under; sections 362 of the Criminal Procedure Code which states 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.” (emphasis added).

7. The aforesaid provisions are supported by the provisions of; section 364 of the Criminal Procedure Code which states that: -(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.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”

8. It is clear from the above provisions that, the court will only exercise its revisionary powers where, the impugned sentence is either incorrect, illegal or improper. The objective of revisionary jurisdiction is to set right a patent defect or error of jurisdiction or law. This jurisdiction will only be involved where the decision under challenge is; grossly onerous, there is no compliance with the provisions of the law, or the finding re-ordered are based on no evidence, or material evidence is ignored or judicial discretion is exercised arbitrarily or perversely.

9. It therefore follows that, in exercise of revision powers, it is not the responsibility of the High Court to take into account the benefit of the evidence, it merely has to see if the provisions of the law have been properly adhered to by the court whose order is the subject of the revision, as held in;Major S S Khanna v Brig F J Dillon 1964 AIR 497, 1964 SCR (4) 409).

10. It is noteworthy therefore that, the revision jurisdiction does not allow the court to interfere and correct errors of facts, or of law when the order is within the jurisdiction of the subordinate court; even if the order is right or wrong, or in accordance with the law, unless it exercised its jurisdiction illegally or with material irregularity. Reference is made to the cases of; Rutto & Another v Republic [2017] eKLR, Republic v Ngumo (2016) eKLR, Public Prosecutors v Muhavi Bi Mond Jani & Another 1996 4 LRC 728, 743-5, DPP v Samuel Kimuche.

11. Having considered the material placed before the court and in particular the record of the lower court I find that, the applicants were convicted and sentenced under section 322 (2) of the Penal Code, which states as follows: -“A person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding fourteen years”.

12. Pursuant to the above provisions the sentence of four (4) years imprisonment meted out is lawful. Even then the applicants are not appealing against it. There concerns is alleged non-compliance with the provisions of; section 333 (2) of the Criminal Procedure Code, which stipulates that:“Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody”

13. In dealing with these provisions, the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR statedas follows:“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code…By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced.…“Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(s) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person” (emphasis added).

14. In that regard, I note from the trial court record the applicants were arrested on March 25, 2018 and despite being granted bond, they remained in custody for the duration of the trial until sentencing on February 10, 2022, being a duration of two (2) years, eleven (11) months.

15. However, before sentencing the applicants, the learned trial magistrate stated as follows:“I have noted the contents on pre bail reports.Each accused is sentenced to serve four (4) years imprisonment.Right of appeal within 14 days explained.”

16. It is thus evident that the trial court did not take into account the provisions of section 333 (2) of the Criminal Procedure Code. The non-compliance with the law definitely renders the sentence improper. In exercise of the revisionary powers bestowed upon the High Court, I order that, the period of two (2) years and eleven (11) months that the applicants were in custody will be reduced to (2) years; taking into account the delay they caused and the two (2) years will not attract any remission. Therefore, the applicants will basically serve two (2) years from the date of sentence.

17. It is so ordered and the prison authority ordered to amend their records accordingly.

DATED, DELIVERED VIRTUALLY AND SIGNED ON THIS 16TH DAY OF NOVEMBER, 2022. GRACE L NZIOKAJUDGEIn the presence of:Applicant in personMs Maingi for the respondentMs Ogutu: court Assistant