[2023] KEHC 1868 (KLR)

Ng’anga v Republic (Criminal Revision E375 of 2022) [2023] KEHC 1868 (KLR) (Crim) (27 February 2023) (Ruling)

Neutral citation: [2023] KEHC 1868 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E375 of 2022

DR Kavedza, J

February 27, 2023

Between

Stanley Wanyoike Ng’anga

Applicant

and

Republic

Respondent

Ruling

1. The background facts are that the applicant was convicted of two counts. The offence in count I was of obtaining credit by false pretense contrary to section 316 of the Penal Code. He was convicted and sentenced to serve ten (10) months imprisonment. In count II, he was convicted of personating a person named in a certificate contrary to section 384 of the Penal Code and sentenced to serve fourteen (14) months imprisonment. The sentence was to run concurrently.

2. The applicant subsequently seeks for a revision of his sentence to a non-custodial one.

3. Upon receipt of the request for revision of sentence, this court directed that a sentence review report be filed on the convict for consideration by the court.

4. The Probation/Community Service Officer WA Maklago filed a report in court showing that the applicant is aged 41 years. He is currently serving his prison term at Nairobi West Prison and recommends a non-custodial sentence.

Analysis of Law 5. The powers of the High court in revision are contained in section 362 through to 366 of the Criminal Procedure Code (cap 75). Section 362 specifically provides 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”

6. The issue herein is whether the circumstances of the matter do justify a revision by a superior court from subordinate court. On this issue I draw guidance as elucidated in the case in the case ofRepublic –vs- James Kiarie Mutungei [2017] eKLR where Nyakundi J held thus:“The rationale of the High Court as a revisionary authority can be initiated by an aggrieved party, or suo moto made by the court itself, call for the record relating to the order passed or proceedings in order to satisfy itself as to the legality, or propriety, correctness of the order in question. The scope of revision therefore is more restrictive in comparison with the appellate jurisdiction which requires the high court to rehear the case and evaluate the evidence in totality by the lower court to come with a decision on the merits...”

7. The maximum sentence provided for the offence of obtaining credit by false pretense contrary to section 316 of the Penal Code is 1-year imprisonment; while for the offense of personating of a person named in a certificate under section 384 of the Penal Code is 3 years. The concurrent sentence of 10 and 14 months imposed was within the law. It has not been demonstrated that the trial magistrate committed any illegality, impropriety or mistake in sentencing the applicant.

8. I am nonetheless alive to the Sentencing Policy Guidelines page 21 which provides: -“Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for a case in which the objectives of sentencing cannot be met through a non-custodial sentence. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence which is geared towards steering the offender from crime. In particular, imprisonment of petty offenders should be avoided as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody. Further, short sentences are disruptive and contribute to re-offending.”

9. I also take into consideration the mitigation of the applicant that he was remorseful and with no previous records. He also showed willingness to rehabilitate as he regrets the actions that led him to prison and was willing to comply with the terms of the non-custodial sentence.

10. I find this application merited and hereby allow it. I note that the applicant has already served over 8 ½ months’ imprisonment.

11. In the circumstances, I set aside the sentence imposed by the trial court and substitute the remainder of the prison term with an order that the applicant shall serve supervised and unpaid community service in Kiambu County under the supervision of Thika Probation Office.

12. Orders accordingly.

RULING READ, DELIVERED AND SIGNED THIS 27TH DAY OF FEBRUARY 2023. ..............................D. KAVEDZAJUDGEIn the presence of: