[2022] KEHC 15958 (KLR)

Munguti v Republic (Criminal Revision E129 of 2022) [2022] KEHC 15958 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15958 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Revision E129 of 2022

GMA Dulu, J

December 1, 2022

Between

Benjamin Musyoki Munguti

Petitioner

and

Republic

Respondent

Ruling

1. The petitioner has come to this court through an undated petition but filed on 22/04/2022, seeking the following orders –1. That he stands aggrieved by the trial court order in Makueni Magistrates Criminal Case No. 194 of 2019 in which he was ordered to compensate the complainant with Kshs.650,000/= in default to serve imprisonment for 2 years, and in addition fined Kshs.70,000/= and in default to serve imprisonment for 2 years.2. That he is aggrieved pursuant to section 336 of the Criminal Procedure Code (Cap.75), section 18, 28 and 31 of the Sentencing Policy Guidelines 11. 11 and therefore prays for orders that the same has been settled as for the judgment term served and may suffer double jeopardy.3. That during his prison term the complainant and his advocate visited him in prison threatening him with civil suit and also went and harassed his family, and the petitioner seeks court orders to stop the same.4. That this court do look and scrutinize the case and review his sentence under section 333 of the Criminal procedure Code, as he in custody serving the term.

2. On directions of this court, the petitioner filed a copy of the trial court record and judgment in Makueni CM Criminal Case No. 194 of 2019. I note that the sentence was pronounced by the trial magistrate on 17/12/2019.

3. From the documents filed, it is indicated that the petitioner filed Makueni High Court Criminal Appeal No. 62 of 2020, but he has not disclosed what transpired in the appeal.

4. The matter proceeded by way of oral submissions and I have considered the submissions of the appellant and those of the Director of Public Prosecutions. In his submissions, the petitioner stated that he was imprisoned for obtaining money by false pretenses, but that the complainant still wanted him to pay him after he comes out of prison. He stated that he did not file an appeal to the High Court.

5. On his part, the Assistant Director of Public Prosecutions stated that the petitioner was wrongly asking this court to prevent the complainant from seeking payment as this was a civil debt.

6. In my view, the request of the petitioner herein will not succeed, as it is not merited. Firstly, though he said orally that he did not file an appeal to the High Court, the topmost document he provided to this court shows that he filed Makueni High Court Criminal Appeal No. 62 of 2020. Thus he is not truthful.

7. Secondly, though the petitioner has filed the present petition, even he did not appeal his request for revision of the trial court’s judgment cannot be sustained in view of the provisions of sections 364(5) of the Criminal Procedure Code (Cap.75), which reads as follows –364(5) When an appeal lies from a finding, sentence or other order, and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed”.

8. Assuming, as he says, the petitioner did not appeal, he had nevertheless the right to appeal against the magistrate’s judgment as well as the orders issued for compensation. Thus being a person who could have appealed his failure to appeal herein prevents him from coming to this court to seek revision orders as provided by the Criminal Procedure Code above. I will thus dismiss his petition.

9. I will state here that, in my view, if the petitioner thinks that he is not indebted to the complainant, he should await to defend himself when formal demand for payment is made. I note however, from my reading of the judgment that the two (2) years consecutive prison sentences were in default of payment of fine and compensation respectively. Thus if he serves prison sentence, he cannot be called upon to pay the amounts of money stated in the judgment.

10. To conclude, I find no merits in the petition, which I hereby dismiss.

DELIVERED, SIGNED & DATED THIS ST DAY OF DECEMBER 2022, IN OPEN COURT AT MAKUENI..............................GEORGE DULUJUDGE