[2022] KEHC 13709 (KLR)

Murimi v Republic (Criminal Revision E098 of 2022) [2022] KEHC 13709 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13709 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Revision E098 of 2022

LW Gitari, J

October 12, 2022

Between

Joseph Murimi

Applicant

and

Republic

State

Ruling

1. Before this court is a criminal revision application that was brought to the court vide the notice of motion dated September 20, 2022.

2. The background of this matter is that the applicant, Joseph Murimi, was charged with the offence of dealing with alcoholic drinks contrary to section 7(1)(b) as read with section 62 of the Alcoholic Drinks Control Act in Chuka Chief Magistrate’s Court Criminal Case No E226 of 2022. It was alleged that the applicant was found in dealing of alcoholic drink known as Muna to wit 120 litres.

3. The applicant pleaded guilty to the offence and on September 6, 2022, he was consequently sentenced to pay a fine of Kshs 100,000/= and in default, to serve a term of the 3 years’ imprisonment as the state through Mr Walusala, state counsel informed the court that they do not wish to oppose the application.

4. In the present application, the applicant seeks a revision of the sentence handed to him by the lower court. The applicant contends that the said sentence was excessive and harsh in the circumstances.

5. The application is not opposed.

Analysis 6. The only issue for determination by this court is whether this is a case where this court should revise the sentence meted against the applicant.

7. The revisionary powers of this court are set out in section 362 through to section 366 of the Criminal Procedure Code, cap 75 of Laws of Kenya (the “code”). Section 362 of the code specifically 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”.

8. In this case, the applicant was convicted on his own plea of guilty. The penalty for the offence of dealing with alcoholic drinks contrary to section 7(1)(b) of the Alcoholic Drinks Control Act (the “Act”) is provided under section 62 of the Act which stipulates:“Any person convicted of an offence under this Act for which no other penalty is provided shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.”

9. From the above provision, it is notable that the sentence imposed by the trial court was legal. This is because the maximum fine that the applicant was liable to pay was Kshs500,000/= yet a less severe fine of Kshs 100,000/= was handed to him. In addition, the alternative of 3 years imprisonment in default of paying the fine is well within the provision of section 62 of the Act. The applicant however contends that the sentence meted against him was excessive and very harsh.

10. Section 64 of the code provides for what this court can do while exercising its revisionary jurisdiction. The said section provides as follows:(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 section 354, 357 and 358, and may enhance sentence;(b)in the case of any other order 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 through 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 arises from a finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”

11. From the above provisions, it is clear that while this court has wide powers in exercise of its revisionary jurisdiction, the said powers are limited by number of factors. One of the limitations to the exercise of revisionary powers by this court is that where an appeal lies and no appeal has been filed, the party who is entitled to appeal cannot insist or maintain a cause for a criminal revision.

12. In his grounds in support of the present application, the applicant contends that the facts of the charge he was facing were not read to him. This is not borne out by the record as the proceedings show that facts were read and he admitted them. In my view, the applicant was entitled to an appeal based on this ground. Based on by the provisions of section 64(5) of the code, I therefore opine that this application should not be sustained by this court as the applicant did not prefer an appeal but instead opted for these revisionary proceedings.

13. In any case, the prevalence of and menace associated with the unregulated sale and consumption of illicit brew is a nation-wide concern that ought to be discouraged. As such, it is my view that the sentence pronounced by the trial magistrate was appropriate in the circumstances.

14. The upshot of the foregoing, in my view, is that the application dated September 20, 2022lacks merit and should be dismissed.

I dismiss the application.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 12TH OCTOBER 2022. L.W. GITARIJUDGE12/10/202Ruling has been read out in open court.L.W. GITARIJUDGE12/10/2022