[2023] KEHC 24753 (KLR)

Mwambushi v Republic (Criminal Revision E0223 of 2023) [2023] KEHC 24753 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24753 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Revision E0223 of 2023

RN Nyakundi, J

November 6, 2023

Between

Mathews Mwambushi

Applicant

and

Republic

Respondent

Ruling

Coram:Before Justice R. NyakundiMr. Mugun for the State Background 1. The Applicant in this matter was charged, tried, convicted and sentenced to ten (10) years imprisonment for the offence of Attempted Defilement Contrary to Section 9(1) (2) of the Sexual Offence Act No.3 of 2006. Brief facts are that: On the 16th day of September 2017 in Eldoret West Sub-County within Uasin Gishu County, intentionally and unlawfully attempted caused his genital organ namely penis to penetrate in the genital organ namely vagina of CJ a girl aged 4 years. Subsequently, the record shows that no appeal was preferred to the High Court by the Applicant save for HCCR REV E 223/2023 subject matter of these proceedings.

2. However, he approached this court to exercise revisionary jurisdiction under Section 362 and 364 of the Criminal Procedure Code specifically on sentence. This is my take the primary objective of these provisions is for the High Court to exercise supervisory jurisdiction over subordinate courts donated by Article 165 (6) & (7) of the Constitution expressly providing as follows: (6) 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) For the purpose of clause (6) the High Court may call for the record of any proceedings before any subordinate court, or person, body or authority referred in clause (6) and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

3. Similarly, Section 362 of the CPC states as follows: The high court may call for and examine the record of any original proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality, or propriety of any findings sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court.

4. Similarly, in Section 364: In the case of proceedings 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 353, 357 & 358 and may enhance the sentence. (b) In the case of any other order other than order of acquittal alter or reverse the order (c) In proceedings under section 203 or 296(2) of the penal code, the prevention of terrorism act, the narcotic drugs and psychotropic substances control act, the prevention of organize crimes act, the proceeds of crime and Anti-money laundering Act, the Sexual Offences Act and the Counter Trafficking in Persons Act where the subordinate court has granted bail to an accused person and the Director of Public Prosecution has indicated his intention for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding 14 days pending the filing of the application for review(2)No order under this section shall be made to the prejudiced of an accused person unless he has had an opportunity of being heard either personally or by an advocate to his own defence.

5. It is therefore expected of the High Court under this provisions to check the exercise of discretion by the subordinate courts on dispute resolution as premised in Article 50 (1) of the Constitution. In this case it is the duty of the court to examine the record to ensure there is no gross abuse of legal power by the magistrates or chairman of tribunals which is wholly irrelevant to the statute to take remedy action to review the errors in the impugned orders for the interest of justice. It is true that discretion must be exercised reasonably. Now what does that mean? That the rule of reason has thus become a generalized rubric covering not only sheer absurdity or caprice, but merging into illegitimate motives and purposes, a wide category of errors commonly described as “irrelevant considerations, and mistakes and misunderstandings which can be classed as self-misdirection or addressing oneself to the wrong question.

6. The spirit of the law in Section 362 & 364 of the CPC is for the High Court to call for the record, examine and scrutinize it on the phase of the record to establish whether the impugned orders were considered in accordance with the law. What is the objective of revisionary jurisdiction? It is invoked where the decisions under challenge are grossly erroneous, they are not in compliance with the provisions of the statute or any legal policy and the findings recorded is based on no evidence, material evidence is ignored, or judicial discretion was exercised arbitrarily, capriciously, injudiciously, whimsically or perversely. For purpose of this jurisdiction this is not an exhaustive list. What the superior courts ought to bear in mind it is not to be exercised as a matter of cause or in a routine manner. Principally, it is to set the record right by correcting any patent defect or an error of jurisdiction or law depending on a case to case basis. From a comparative jurisprudence standpoint, the supreme court of India in Amit Kapoorvs. Ramesh Chander, (2012(9 SCC 460 (Para 20) had this to say: “Normally revisional jurisprudiction should be exercised on a question of law. However, when factual appreciation is involved then it must find place in the class of cases resulting in a perverse finding. Basically the power is required to be exercised so that justice is done and there is no abuse of power by the court.Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such case.”

7. As a general rule, I am strongly of the view that the commonly referred to as decongestion exercise of the High Court over non-serious offences dealt by the subordinate courts with a capping sentence of three years and below is no power to be dispensed with under revisionary jurisdiction. Yes the principles under Section 362 & 364 of the CPC may be of relevance but there is a statutory framework known as Community Service Orders Act and Probation Offenders Act of Kenya. How easily this questions may appear to overlap may be left to a case by case basis. Whether something more than mere procedure or formality is in question in both jurisdictions is a matter to be left to the wisdom of the session Judges of the High Court. What seems to be ignored again and again is that whether in Civil or Criminal Law, there ought to be an end to litigation. The constitutional imperative and the court’s role in upholding the constitution orders as a whole is to fully comply with the doctrine of exhaustion in adjudication of cases. An overview of the constitution and statute law gives every citizen a legal system which guarantees due process from the primary courts to the Supreme Court as the jurisdiction of the case may demand. Typically, every litigant may it be in civil, criminal, commercial, family, etc has a right of appeal to a superior court. That is our judicial environment. It is worth noting from the outset even in absence of any justiciable issues convicts are now burdening courts with all manner of applications to challenge sentences passed by superior courts including the highest court of the land in criminal matters. As far as the constitution is concerned, it may be frowning to this short comings in the legal system. I have stated elsewhere in my writings whether indeed res-judicata is a preserve of civil law and no go zone in criminal jurisdiction matters. Why res-judicata in criminal cases. It is the epitome of litigation. This results from the rule which prevents the parties to a judicial determination from litigating the same question over again, even though the determination is demonstrably wrong except in proceedings by way of appeal, the parties bound by the judgement are estopped from question it. As between one another, they may neither pursue the same cause of action again, nor may they again litigate any issue which was an essential element in the decision.

8. In practice on matters of appeal, Section 349 of the CPC is very precise in this format. “ An appeal shall be entered within fourteen days of the date of the order or sentence appealed against: “ Provided that the court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has elapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgement or order appealed against, and a copy of the record, within a reasonable time of applying to the court thereof.”

9. For purposes of exercising jurisdiction, it is fundamental to question whether in respect of matters of revision especially on final orders of a trial court there is room to hear and determine issues filed way out the 14 days without leave of the court. It is the primary duty of the convicts to take steps to progress their cases within the legal system as provided for in the criminal procedure code. I think the law prohibits a court of law from any such impulsive inclination to exercise revisionary jurisdiction in circumstances where there has been in ordinate delay on the part of the convicts or applicant. I will discern these principles as the yardstick to be borne in mind whenever a revision is placed before a court of law. Whether there has been inordinate delay on the part of the convict/applicant in prosecuting the case. Whether the delay is intentional and therefore inexcusable. Whether the delay is an abuse of the court process, Whether the convict/ applicant has offered a reasonable explanation and sufficient cause for the delay in filing the application for revision. I am of the considered view that the legislature did not intend to have criminal revisions be litigated ad-infinitum. The time frame adherence in the statute is provided for to advance one’s case without unreasonable delay. The important question is whether the constitutional adjudication in Article 50 (6) (a) & (b) which provides as follows: A person who is convicted of a criminal offence may petition the High Court for a new trial if: (a) the person’s appeal if any has been dismissed by the highest court to which the person is entitled to appeal or the person did not appeal within the time allowed for appeal and (b) New and compelling evidence has become available read in conjunction with Section 362 & 363 of the CPC there is incompatibility between the purposes of the statutory powers and the purposes for which the review jurisdiction is provided for in the constitution. The truth is many such application by the convicts overlap the jurisdiction under Article 50(6)(a) & (b) of the constitution with that of Section 362 & 363 of the CPC in endeavoring to seek a third or fourth bite at the cherry against such litigation which strains the administration of justice.

10. As indicated in this ruling the arguments by the convicts/applicants fails the legal test of justiciability under Article 50(6)(a) & (b) of the constitution as read in with Section 362 & 364 of the CPC. For those reasons, it is hereby dismissed under Section 382 of the CPC for want of merit.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 6TH DAY OF NOVEMBER, 2023. ................................R. NYAKUNDIJUDGE