[2023] KEHC 25326 (KLR)

Mweberi v Republic (Criminal Revision 36 of 2023) [2023] KEHC 25326 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25326 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision 36 of 2023

DR Kavedza, J

November 16, 2023

Between

Bivon Momanyi Mweberi

Applicant

and

Republic

Respondent

(Being an application for revision of the order delivered by Hon. E. Riany (SRM) on 20th April 2023 at Kibera Chief Magistrate’s Court Criminal Case no. E1926 of 2022 Republic vs Bivon Momanyi Mweberi)

Ruling

1. The applicant is an accused person before the trial court, where he is facing the charge of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. On 20th April 2023, the prosecution made an application for the trial court to admit the witness statements of the witnesses who were not available to come to court. The court admitted the witness's statements.

2. Vide a notice of motion dated 10th May, 2023, the applicant now seeks a revision of the orders of the court admitting the witness statements as evidence. he has filed an affidavit in support of the application of a similar date in support of the motion. He averred that his rights to a fair trial under article 50 had been curtailed. He urged the court to grant the orders sought.

3. I have considered the application and the applicable law. The issue for determination is whether the applicant should be granted the revisionary orders sought.

4. 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 to satisfy 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.

5. Article 165(6) of the Constitution 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.

6. Consequently, this court has jurisdiction to entertain the application before me. In the instant application, the applicant sought a revision of the order made by the trial court. The key issue for consideration is the question of whether the proceedings of the lower court and the ruling can be faulted in terms of correctness, legality, or propriety.

7. From the record, the trial court considered the application by the prosecution and the objection by the accused. It is manifest from the foregoing that the learned magistrate reached her decision after giving due consideration to the respective positions taken by the parties before him. The applicant was therefore given an opportunity to articulate his case.

8. The applicant has attempted to challenge the application on the merits of the decision arrived at by the learned trial magistrate. The applicant, in doing so, is inviting this court to step into the arena of a magistrate's court, peruse the evidence tendered before the said court, and decide whether or not the court should admit the evidence tendered by the prosecution. If this court was to do so, it would be usurping the powers of the trial court.

9. My considered view, however, is that, when it comes to perceived errors in the appreciation of the facts of a particular case and the application of the law to those facts, the trial magistrate’s decision can only be competently challenged on appeal after the conclusion of the trial.

10. The upshot is that I find nothing in the record of the subordinate court that shows there was an illegality, irregularity, or impropriety in the orders made by the trial court. Therefore, I find the application for revision dated 10th May 2023, is completely devoid of merit. The same is hereby dismissed.It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 16TH DAY OF NOVEMBER, 2023_______________D. KAVEDZAJUDGEIn the presence of:Ms. Akunja for the stateApplicant absentJoy Court Assistant